Judgment Raj Kishore Prasad, J. 1. This reference must be accepted. What happened was this : On the 7th December 1957, a proceeding under Sec.144 of the Code of Criminal procedure, hereinafter to be referred to as the Code, was drawn up against both the parties. On the 23rd January, 1958, the proceeding under Sec.144 of the Code was converted into a proceeding under Sec.145 of the Code. The actual proceeding under Sec.145 (1) however, was drawn up and signed on the 31st January, 1958. The learned Subdivisional Magistrate, Sadar, Darbhanga, on a consideration of the evidence of both Sides, found that "none of the parties is in possession of the disputed land" and, therefore, he attached the land in dispute under Sec.146 of the Code, until the right and title of the parties thereto Was decided by a competent Court. 2. It is obvious that the attention of the learned Magistrate was not drawn to the new Sub-section (1) of Sec.146 of the Code, which was substituted by Act 26 of 1955, for the old Sub-section (1). 2. It is obvious that the attention of the learned Magistrate was not drawn to the new Sub-section (1) of Sec.146 of the Code, which was substituted by Act 26 of 1955, for the old Sub-section (1). Present Sub-section (1) of Sec.146 of the Code is in these terms:- "If the Magistrate is of Opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of competent jurisdiction tion to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Sec.145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him." It is manifest, from the amended Sub-section (1) of Sec.146, read above, that if after the enquiry under Sec.145 of the Code, the Magistrate is of the opinion that none of the parties, as here, was in actual possession of the subject of dispute at the date of the order passed under Sub-section (1) of Sec.145, or, is unable to decide which of the parties was in such possession, he may attach the land in dispute and refer the case to a competent Civil Court for a decision on the question of possession and direct he parties to appear before that Court on a date fixed by him. Sec.146 is a sort of corollary to Section. 145 and Sec.148 may really be considered as a part of Sec.145 or a complement of it. Under the new Sub-section (1) of Sec.146, the Magistrate, if he holds that neither party is in possession or if adjudication of possession is impossible, has to do two things, first, to attach the subject of dispute, and, second, to refer the case to a competent Civil Court, in the manner laid down therein. Under the new Sub-section (1) of Sec.146, the Magistrate, if he holds that neither party is in possession or if adjudication of possession is impossible, has to do two things, first, to attach the subject of dispute, and, second, to refer the case to a competent Civil Court, in the manner laid down therein. These two things go together, and as such, the Magistrate acts, in contravention of Sub-section (1) of Sec.146, if he only attaches the subject of dispute and does not refer the case to a competent Civil Court as required by and in the manner laid down in the second paragraph of Sub-section (1) of Sec.140. Under this new sub-section, the Magistrate has, in such a case, himself to draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any arid which of the parties was in possession of the subject of dispute at the material date, and, in order to avoid any delay, he hag himself also to fix a date on which the parties shall appear before the Civil Court. It follows, therefore, that if a Magistrate only attaches the subject of dispute and does not refer the case to a competent civil court, his order is illegal and a clear contravention of Sub-section (1) of Sec.146, and, as such, it must be set aside, and, the case remitted to him for passing a legal order in terms of Sub-section (1) of Sec.146 of the Code. 3 In the instant case, therefore, the Magistrate should not only have attached the land in dispute, but also, when he found that none of the parties was in possession, have referred the case to a competent Civil Court for a decision on the question of possession and directed the parties to appear before that Court on a date fixed by him. 4. For these reasons, it is plain that the order complained or, passed by the learned Magistrate, is not in accordance with Sub-section (1) of Sec.146 of the Code and, as such, it must be set aside. 5. The result, therefore, is that the reference is accepted, the order complained of is set aside, and the case is sent back to him for disposal in accordance with law in the light of this judgment.