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Judgment
Agarwala, J.—Owing to a change in the course of the river Ganges in the District of Shahabad a dispute broke out regarding a large area of land between the proprietor and tenants of village Shohra Tribhuani on the one hand and the proprietor and tenants of village Piparpainti on the other hand. Proceedings u/s 145, Criminal P.C., were commenced and in the course of those proceedings a part of the area in dispute was found to be public domain. With that area these applications in revision are not concerned.
The Magistrate was unable to find which of the parties was in possession of the remaining 1200 bighas. He therefore attached them u/s 146. Subsequently under the orders of Government, a survey and settlement of the area in dispute was made. A part of that area was found to be in possession of the tenants of Tribhuani and the remainder in the possession of the tenants of Piparpainti. Both the parties applied to the District Magistrate to release from attachment the areas of which they have been found to be respectively in possession by the survey officer.
The District Magistrate of Shahabad has rejected the applications on the ground that the Record of Rights is not a decision of a competent Court within the meaning of Section 146. A case where the facts were similar to those of the present case is Ambler v. Somi Ahmed (1910) 37 Cal. 331. There also land was attached u/s 146. Sub. sequently one of the parties obtained an order in his favour from the survey authorities u/s 41, Bengal Survey Act. He then applied to have the attachment released in his favour.
It was held that the order of the Collector as to the land under the Survey Act is a determination by a competent Court of the rights of the person entitled to possession thereof. It was also held that the order of the Collector is a determination of the rights of the parties to the original dispute, since the two par. ties in the original dispute were both before the survey officer. Section 146, Criminal P.C., empowers a Magistrate to attach land in dispute until a competent Court has deter, mined the rights of the parties thereto or the person entitled to possession thereof. The facts of that case are indistinguishable from the facts of the present case and prima facie there is no reason why the decision in the Calcutta case should not govern the decision in this case.
The learned advocate for the opposite party, proprietor and tenants of Piparpainti relies on the decision in Kutiswar Mondal v. Jitendra Nath A.I.R (1926) . Cal. 316 in which it was held that an entry in the Record of Rights could not be regarded as constituting the final adjudication of a competent Court within the meaning of Section 146.
The distinction between that case and the earlier Calcutta case is that it does not appear that in Kutiswar Mondal v. Jitendra Nath A.I.R (1926) . Cal. 316 there was an order of a survey officer u/s 41, Survey Act. That Section provides:
The Collector shall determine the boundary according to actual possession, and cause it to be secured by boundary marks; and the order of the Collector under this Section shall, until it be reversed or modified by competent authority, have the force of an order of any civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector.
The order of the Collector therefore is deemed to be an order of the Civil Court on the question of possession. Following ''the earlier Calcutta case I would therefore direct the District Magistrate to release the disputed land according to the finding of the survey officer u/s 41, Bengal Survey Act. This order will govern the Criminal Revision No. 9 of 1939.