Research › Browse › Judgment

Orissa High Court · body

1967 DIGILAW 101 (ORI)

BINAYAK BOXI v. HARIHAR MISRA

1967-09-05

G.K.MISRA

body1967
JUDGMENT : G.K. Misra, J. - In a proceeding u/s 145, Code of Criminal Procedure both parties filed their statements, affidavits and documents. The learned Magistrate was unable to decide as to which of the parties was in possession on the date of the preliminary order. He accordingly drew up a statement of facts of the case and forwarded the records of the proceeding to the Subordinate Judge, Jeypore on 5-11-1964, who dealt with the case till 28-6-1905. On that very date, the Munsif of Jeypore received the records on transfer by an order of the District. Judge dated 21-6-1965. An objection was raised before the learned Munsif that he had no jurisdiction to dispose of the reference as the Magistrate had made it to the Subordinate Judge and not to him. The objection was overruled on 24-7-1965. On a consideration of the materials on record the learned Munsif held on 12-11-1965 that the first member of the second party was in possession of a portion of the disputed site measuring 66 ft. extending from the Municipal drain in the east and 40 ft. north to south. The rest of the disputed land 24: ft. x 40 ft. was held to be in possession of the first party. He transmitted the findings with the records of the proceeding to the Magistrate by whom the reference was made. On receipt thereof the Magistrate disposed of the proceeding on 11.7.1966 in conformity with the decision of the Civil Court after overruling the contention that the Munsif had no jurisdiction to decide the reference as it had been made to the Subordinate Judge. Against this order the criminal revision has been filed. 2. The only contention raised by Sri R.C. Misra is that the Munsif had no jurisdiction to decide the reference in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another. their Lordships held that a proceeding before a Civil Court arising out of a reference u/s 146(1), Code of Criminal Procedure is a civil proceeding as contemplated by Section 141, Code of CPC and that the District Judge has got the power of transfer of such proceeding from one Civil Court to another u/s 24(1)(b), Code of Civil Procedure. In this case, the original reference was to the Subordinate Judge. In this case, the original reference was to the Subordinate Judge. The proceeding before him was a civil proceeding or, at any rate, a proceeding within the meaning of Section 141, Code of Civil Procedure. The District Judge had power of transfer of such proceeding from the Court of the Subordinate Judge to that of the Munsif, Jeypore. The aforesaid principle hits full application to this case. It appears from the order of the Munsif dated 24-7-1965 that no Subordinate Judge was posted to Jeypore after 28.6.1965. This is why the transfer was made. The Munsif had jurisdiction to decide the reference. 3. The revision is misconceived and is misconceived and is accordingly dismissed Revision dismissed. Final Result : Dismissed