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1972 DIGILAW 126 (MAD)

B. H. Gaviappa v. Kunnaiah

1972-02-22

K.BHIMIAH

body1972
Order.- The above revision petition is filed by the members of the first party (to be hereinafter referred to as the petitioners) against the order dated 2nd November, 1971, passed by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore (to be hereinafter referred to as the Executive Magistrate), in J.D.L. No. 8 of 1970-71, holding the members of the second party who are respondents herein (to be hereinafter referred to as the respondents) to be entitled to possession of the property in dispute until evicted therefrom in due course of law. 2. The Circle Inspector of Police, Kangeri Gate Police Station, filed a report in C.R. No. 158 of 1970 on 4th December, 1970 before the Executive Magistrate for action being taken under section 145 of the Criminal Procedure Code as there existed a dispute in respect of a farm house and cattle-sheds situate in the limits of Hosakerehalli village, Bangalore South Taluk and Gerehalli village, Bangalore North Taluk, commonly known as Tiwari estate, comprised in S. Nos. 103/1, 103/2, 104/1, 104/2, 105, 106 and 101 of Hosakerehalli village, Bangalore South Taluk and S.Nos. 17, 18 and 19 of Gerehalli village, Uttarahalli Hobli, Bangalore North Taluk, which was likely to cause a breach of the peace. The Executive Magistrate, on being satisfied, passed a preliminary order on 5th December, 1970, under section 145(1), Criminal Procedure Code, and as a case of emergency, to prevent imminent breach of the peace, attached the immovable properties, namely, the farm house and the cattle-sheds in S. No. 106 of Hosakerehalli Village, and directed the Sub-Inspector of Police, Bytarayanapura to take possession and hold the attachment pending enquiry by the Court. Notices were duly served on the petitioners and the respondents. They filed their statements and affidavits. The Executive Magistrate heard them. As he could not come to a definite conclusion on the basis of records as to which of the parties was in possession of the properties, namely, cattle-sheds and term house in dispute on the date of the attachment, made a reference to the Civil Court as required under section 146(1) of the Criminal Procedure Code and forwarded the same to the First Additional Second Munsiff, Bangalore, to decide the question whether any and which of the parties Was in actual possession of the property in dispute. The Additional Munsiff, Bangalore, to whom the matter was referred, enquired into the matter and forwarded his findings to the Executive Magistrate. The finding of the learned Munsiff in para. 113 of his order reads as under: 2. "The order that follows is that the respondents 1, 2, 4 and 5 who are found to be in actual possession of the farm house and the cattle-shed will continue to be in possession until they are evicted under the process of law." On receipt of this finding, the learned Executive Magistrate passed an order in conformity with the finding of the Civil Court and declared that the members of the second party who are respondents herein are entitled to possession of the lands under dispute until evicted therefrom in due course of law. He also passed an order forbidding all disturbance to such possession. He raised the attachment and directed Bytarayanapura Police to put the respondents in possession of the properties. The petitioners who are aggrieved by this order have filed the above revision petition. 3. Mr. B.K. Ramachandrarao, learned Advocate for the petitioners, contended that the Executive Magistrate has exercised the jurisdiction in respect of the property that was not the subject-matter of the proceedings before him. Secondly, he contended that in respect of the proceedings before him, the Executive Magistrate has failed to pass any order at all. Thirdly, he contended that the revision petition against the impugned order is maintainable. However, he refrained from convassing any interference with the finding of the learned Munsiff with regard to the actual possession of the properties in dispute. 4. Mr. Shanthamallappa, learned Advocate for the respondents, firstly contended that the revision filed against the impugned order is not maintainable in view of the decision of this Court, and of other High Courts in India. He urged that neither the finding of the civil Court nor the impugned order passed by the Executive Magistrate is revisable. He nextly contended that since the order passed by the Executive Magistrate under section. 146(1) referring the matter to the civil Court for opinion is not challenged, the petitioners are precluded from challenging the order passed after receipt of the findings of the civil Court. He nextly contended that since the order passed by the Executive Magistrate under section. 146(1) referring the matter to the civil Court for opinion is not challenged, the petitioners are precluded from challenging the order passed after receipt of the findings of the civil Court. He further urged that unless the findings of the Munsiff’s Court are set aside by a competent civil Court in due course of law as required under section 14b(1)(e), it cannot be interfered within the revision. He further contended that there is no ambiguity in the order passed by the Executive Magistrate and the order in question is passed in respect of the proceedings before the Executive Magistrate. He pointed out that in section 145, clause 2, the definition of land includes ‘building’. He further urged that if at all there is any ambiguity in the order, it is a matter for clarification by this Court and does not call for interference. 5. There appears to be no force in the contentions raised by Mr. Ramachandararao for the petitioners while there is considerable force in the contentions raised by Mr. Shanthamallappa on behalf of the respondents. 6. It is necessary to refer to some of the relevant provisions of section 146 of Criminal Procedure Code before considering the decisions cited in support of the respective contentions raised on behalf of the parties. 7. Section 146 (1) lays down: "146 (1). Shanthamallappa on behalf of the respondents. 6. It is necessary to refer to some of the relevant provisions of section 146 of Criminal Procedure Code before considering the decisions cited in support of the respective contentions raised on behalf of the parties. 7. Section 146 (1) lays down: "146 (1). 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 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...." Section 146(IB) reads: "The civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made; and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under section 145 in conformity with the decision of the Civil Court." Section 146 (ID) lays down as follows: "No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed." Section 146 (IE) lays down: "An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction." It is thus clear from the provisions of section 146(IB) that the Magistrate on receipt of the finding by the Civil Court should proceed to dispose of the proceedings under section 146(IB) in conformity with the decision of the Civil Court. Further, it is also clear from section 146 (ID) that no appeal shall lie from any finding or the Civil Court given on a reference under this section nor shall any review or revision of such a finding be allowed. In otherwords, the party which is aggrieved by the finding of a Civil Court given on a reference is precluded from filing any appeal against the said finding or prefer any review or revision of such finding. 8. Mr. In otherwords, the party which is aggrieved by the finding of a Civil Court given on a reference is precluded from filing any appeal against the said finding or prefer any review or revision of such finding. 8. Mr. B.K. Ramachandrarao, while conceding the position that under section 146(ID), the petitioners cannot canvass for interference with the finding given by the Munsiff with regard to the actual possession of the properties in dispute either in appeal, review or revision, contended that the preliminary objection raised on behalf of the respondents is untenable. He urged that when once the finding is incorporated in the order passed by the Magistrate as required under section 146(IB), the order of the Magistrate is revisable under section 429, Criminal Procedure Code by this Court. In support of this contention, he relied upon a Full Bench ruling of the Patna High Court in Raja Singh and another v. Mahendra Singh and others1, and also the decisions in Indersingh v. State of Rajasthan2, in Rama Lakhan v. Raghunath3, and in Nisiki Mohan v. Sonaram4. 9. On the other hand, Mr. Shanthamallappa, relied upon the ruling of this Court in Dalpathi Shelly v. Honnegowda5, which is directly on the point. He also placed reliance upon the decision in Ram Chandra v. State of U.P.6, Rengammal v. Subbarayalu7, and in Chanai Kumar v. Probhat Kumar8. These two sets of decisions cited at the Bar, disclose 1 hat there is a conflict of opinion among the various High Courts in this country with regard to the maintainability of a revision against an order passed by the Executive Magistrate under section 146(IB) Criminal Procedure Code. In Raja Singh v. Mahendra Singh1, S.C. Mishra and S.P. Singh, JJ., have held as follows: "The provisions of sub-section (ID) of section 146 bar an appeal review or revision under the Code of Civil Procedure, and even under the Code of Criminal Procedure, only so long as the Magistrate does not pass his order in conformity with the decision of the Civil Court. This provision does not impose any bar to any review or revision of the order of the Magistrate passed under sub-section (IB). The High Court can interfere with the finding of the Civil Court under sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final order is passed. This provision does not impose any bar to any review or revision of the order of the Magistrate passed under sub-section (IB). The High Court can interfere with the finding of the Civil Court under sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final order is passed. When a revision is preferred against the order of the Magistrate under sub-section (IB), not, only the operative order of the Magistrate but the entire proceeding including the findings of the Civil Court are before the Court and, therefore, the High Court can, in appropriate cases, interfere with the findings of the Civil Court, if they are in flagrant violation of the well recognised principles of law". Sahai, J., disagreeing with this view, has observed as follows: "..In the present case, I have held that, in a criminal revision arising out of a final order of the Magistrate, the High Court cannot examine the correctness of the Civil Court’s finding. This remedy is, therefore, not open to the aggrieved party. The only other remedy is provided in sub-section (IE) of section 146. In pursuance of that remedy, an aggrieved party has to institute a suit. In my opinion the High Court cannot refuse to interefere in exercise of its power under Article 227, if a case is made out for exercise of such power, only on the ground that, by means of a lengthy remedy of a suit, the aggrieved party can get his redress. In my opinion the High Court cannot refuse to interefere in exercise of its power under Article 227, if a case is made out for exercise of such power, only on the ground that, by means of a lengthy remedy of a suit, the aggrieved party can get his redress. I wish only to add that, as a rule, the High Court will decline to interfere under Article 227 before the Magistrate passes his final order on the ground that it will be inconvenient and duplication of work to entertain one petition before and one petition after the Magistrate passes his final order in conformity with the finding of the Civil Court." The question referred to the Bench for determination in the above decision was as to whether the High Court could interfere in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, with the finding of the Civil Court recorded when a dispute which was a subject-matter of a proceeding under section 145 of the Code of Criminal Procedure could not be decided by the Magistrate before whom it was pending and when it was referred to a Civil Court for a finding. While dealing with that question, their Lordships of the Patna High Court have incidentally dealt with the question whether the High Court can interfere with the order passed by the Magistrate under section 146 of the Code of Criminal Procedure after the finding of the Munsiff is adopted by him and final order is passed under section 146(IB) in the exercise of its revisional power under sections 435 and 439 of the Criminal Procedure Code. There is also a dissenting judgment delivered by Sahai, J. 10. In Ram Lakhan Rai Choudhary v. Raghunath Choudhary and others1, Goswami, J., while dealing with the question whether the application under section 439, Criminal Procedure Code is absolutely barred against an order passed by the Magistrate under section 146(IB), has observed as follows: "After the final order is passed under section 146(IB) by the Criminal Court, it is open to an aggrieved party in an appropriate case to invoke the revisional jurisdiction under sections 435 and 439 of the Code of Criminal Procedure. Whether such a petition succeeds or not is a different matter, but a petition cannot be said to be not maintainable in law. Whether such a petition succeeds or not is a different matter, but a petition cannot be said to be not maintainable in law. With respect, I agree with the observations of the Patna High Court in Raja Singh’s case2, referred to above. The objection as to the maintainability of this application is therefore overruled." It is clear from the above that a revision petition under section 435 or 439 of the Criminal Procedure Code is maintainable against an order passed by the executive Magistrate under section 146 (IB) of the Criminal Procedure Code in conformity with the finding of the Civil Court. 11. The next decision on which reliance was placed in Nishi Mohan v. Sonaram3, which is a Full Bench decision. Goswami C.J., who delivered the decision in Ram Lakham Rai Choudhary’s case4, speaking for the Bench, has observed in para. 4 as follows: "Since the proceeding before the Civil Court after reference by the Magistrate in a civil proceeding Vide Ram Chandra v. State of U.P.5, if the above provision were not advisedly inserted in the section, it could be open to an aggrieved party to move the Civil Court in appeal or in revision, as the case may be or even delay the proceedings before the civil Court by seeking review of the finding. This would have defeated the very object and purpose of the provisions under sections 145 and 146, Criminal Procedure Code. Therefore, the approach to Civil Court is completely barred under section 146(ID), Criminal Procedure Code. Under section 435, the Court in revision can call for and examine the record of any proceeding before, any inferior criminal Court. Before therefore, the Court in revision can deal with a particular matter, it must be a matter relating to a criminal proceeding. The finding of the Munsiff, although at the requisition of the criminal Court, is in a civil proceeding and it is on that basis that section 146(ID) had to be provided, so that no further challenge of that finding may be made in the hierarchy of Civil Courts. Section 439, Criminal Procedure Code also necessarily must relate to a criminal proceeding and in subordinate Court. Section 439, Criminal Procedure Code also necessarily must relate to a criminal proceeding and in subordinate Court. Since under section 146(IB), the criminal Court has no other option than to pass an order in conformity with the decision of the civil Court, it remains a decision of the civil Court which is acted upon by the criminal Court. It will be open in criminal revision to challenge the order of the Magistrate only when it is not in conformity with the decision of the civil Court or if there is any other illegality in the proceeding before the Magistrate. The finding of the Civil Court throughout remains as such even after it is being transmitted to the Magistrate and that finding cannot be challenged either before the Magistrate or in revisions under sections 435 and 439, Criminal Procedure Code. If the civil Court commits any breach of fundamental principles of law or such other gross illegalities, it would be open to the aggrieved party to move the High Court by means of an appropriate application under Article 227 of the Constitution and in exercise of the power of superintendence the High Court may look into the matter and pass such orders as may be necessary. It will not be open however, to challenge the finding of the civil Court before the High Court in criminal revision. We are, therefore of opinion that a revision application is competent under sections 435 and 439 Criminal Procedure Code, against the final orders passed by the Magistrate under section 146(IB), Criminal Procedure Code, but no revision to the High Court lies against the finding of a civil Court as such. In the instant matter, we are of opinion that no case is made out under Article 227 of the Constitution, It may be noted that the above decision was rendered while dealing with the application filed under Article 227 of the Constitution. Their Lordships of Assam and Nagaland High Court have incidentally dealt with the question of bar of revision before the High Court against an order of the Magistrate passed under section 146(IB). However, their Lordships are very clear on the question that it will not be open to challenge the finding of the civil Court before the High Court in criminal revision under sections 435 and 439 of the Criminal Procedure Code. However, their Lordships are very clear on the question that it will not be open to challenge the finding of the civil Court before the High Court in criminal revision under sections 435 and 439 of the Criminal Procedure Code. 11-A. In Indersingh and others v. State and others1, Bhargava, J. has observed: "Then comes sub-section (ID). It bars appeal, revision or review against the findings of the civil Court. By incorporating this provision it is intended by the Legislature that the proceedings under section 145 be not needlessly protracted and the dispute regarding possession should be decided soon. This sub-section bars the remedy of appeal, revision or review against the finding of the civil Court. It cannot be interpreted to mean that when a final order is passed by a Magistrate, though in conformity with the decision of the civil Court, a revision under the provisions of the Code of Criminal Procedure will also not lie to the Court of Session or the High Court. The order passed by a Magistrate under sub-section (IB) of section 146 is by an inferior criminal Court and should be amenable to the revisional jurisdiction of the Courts mentioned in section 435 Criminal Procedure Code. I, therefore, see no force in the preliminary objection that no revision lies against the order of the Magistrate passed under sub-section (IB) of section 146 of the Cods". 12. In Rengammal v. Rama Subbarayalu2, Ramaswamy, J. (as he then was), has observed as follows: "In regard to the revision which is sought to be preferred against the proceedings of the learned Subordinate Judge, one has only to look at section 146(I-D), which lays down that no appeal shall lie, from any finding of the civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. In other words, the Parliament in the exercise of its undoubted and unquestionable powers has limited the revisional powers of this Court to this extent, viz., that in case of findings given under section 146 Criminal Procedure Code no revision shall lie and has thereby provided against mischievous consequences and duplicated wasteful Court work. In other words, the Parliament in the exercise of its undoubted and unquestionable powers has limited the revisional powers of this Court to this extent, viz., that in case of findings given under section 146 Criminal Procedure Code no revision shall lie and has thereby provided against mischievous consequences and duplicated wasteful Court work. This point also is concluded by authority-vide Muthu Sethurayar v. Lourduswami Odayar.1 This restriction is but proper because the findings get merged in the decision of the Magistrate and all the grounds that can be urged against the finding can be urged against the finalised decision and if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity. This wise restriction has been conceived in the best public interests and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of this Court". 13. In Chandi Kumar Sarkar v. Probhal Kumar Biswas2, Mukherji, J. has observed as follows: "If it is open to the High Court to revise the order of the Magistrate passed under section 146(IB) of the Criminal Procedure Code on the ground that the finding of the civil Court is incorrect that would mean assuming jurisdiction in a matter in the face of a statutory denial of that jurisdiction. The finding of the civil Court might be wrong but even if it is so, that finding does not carry any finality in the matter of the dispute and can always be set aside by way of a suit. Sections 145 and 146 of the Code have prescribed only a summary remedy and the proceeding virtually terminates with the finding of the civil Court and if the law says that the dispute should not be protracted thereafter in that proceeding by talcing an appeal, review or revision against the finding of a civil Court there is no reason why this Court should assume jurisdiction in the matter by interfering with that finding indirectly when direct interference is not permissible. I find therefore that even if the civil Court had gone wrong in the matter of the relevant data for the purpose of the question of possession the finding of that Court is not liable to be challenged excepting by way of a regular suit in the proper forum. I find therefore that even if the civil Court had gone wrong in the matter of the relevant data for the purpose of the question of possession the finding of that Court is not liable to be challenged excepting by way of a regular suit in the proper forum. So far as this case is concerned however, the Munsiff, in my opinion, cannot be said to have gone wrong in the manner contended on behalf of the petitioner". It is clear from the above ruling that the High Court cannot assume jurisdiction and interfere with the finding given by the civil Court in the exercise of its revisional jurisdiction under section 439 of the Criminal Procedure Code even indirectly when the direct interference is not permissible. 14. In Ram Chandra Aggarwal and another v. The State of Uttar Pradesh and another3, their Lordships of the Supreme Court while dealing with a question whether the District Judge has jurisdiction under section 24 of the Civil Procedure Code to transfer a reference made by the Magistrate to a particular civil Court under section 146 of the Code of Criminal Procedure to another Civil Court have observed in para. 5 of the judgment as follows: "If sub-section (ID) of section 146 Criminal Procedure Code, had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it is then, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before the civil Court is not a civil proceeding." Thus, it is clear that the effect of sub-section (ID) of section 145 of the Criminal Procedure Code is that neither an appeal nor a revision is maintainable against the order passed by the civil Court on a reference made by the executive Magistrate under section 146(1) of the Criminal Procedure Code. No doubt, this decision does not deal with the question whether a revision is maintainable under section 439 Criminal Procedure Cade, against an order passed by the executive Magistrate under section 146(IB). 15. No doubt, this decision does not deal with the question whether a revision is maintainable under section 439 Criminal Procedure Cade, against an order passed by the executive Magistrate under section 146(IB). 15. Strong reliance was placed on behalf of respondents on the decision of this Court in Dalpathy Chetty v. Bonne Gowda and others1, It is held by this Court that where a Magistrate in proceedings under section 145 Criminal Procedure Code, in respect of a dispute regarding possession of certain lands referred the matter to the Munsiff and on receipt of the finding passed by the Munsiff, passed an order under section 146(IB) in accordance with the finding recorded by the Munsiff, such an order of the Magistrate is not revisable. The decision of this Court is directly on the point that the order passed by the executive Magistrate under section 146(IB) regarding possession of land on the finding of the civil Court is not revisable in the exercise of powers of this Court under section 439 Criminal Procedure Code. 16. In Raja Singh’s Case2, the-majority view is when a revision is preferred against an order of a Magistrate under sub-section (IB), not only the operative order of the Magistrate but the entire proceeding including the finding of the civil Court can be interfered with by the High Court. The High Court of Rajasth?n is of the same view. Such an extreme view is not taken by the Full Bench of Assam and Nagaland High Court in Ram Lakhan v. Raghunath3 Their Lordship’s view is that it Will be open in criminal revision to challenge the order of the Magistrate only when it is not in conformity with the decision of the civil Court or if there is any other illegality in the proceedings before the Magistrate and that the finding of the civil Court throughout remains as such even after it is transmitted to the Magistrate and that finding cannot be challenged either before the Magistrate or in revision under sections 435 and 439 of the Criminal Procedure Code. If the civil Court commits any breach of fundamental principles of law, the High Court, when moved by the aggrieved party under Article 227 of the Constitution, may look into the matter and pass such order as may be necessary. 17. If the civil Court commits any breach of fundamental principles of law, the High Court, when moved by the aggrieved party under Article 227 of the Constitution, may look into the matter and pass such order as may be necessary. 17. On the other hand, the decisions of the High Courts of Madras, Calcutta and Mysore, are to the effect that it is not open to the High Court to revise the order passed by the Magistrate under section 146(IB) of Criminal Procedure Code, on the ground that the finding of the civil Court is incorrect and that would mean assuming jurisdiction in a matter in the face of a statutory denial of that jurisdiction and the High Court cannot go into the merits of the finding in exercising the powers of revision against the order passed by the Munsiff. 18. Regarding the question whether the High Court can, in the exercise of its revisional jurisdiction under section, 435 and section 439 Criminal Procedure Code, interfere with the finding of the Munsiff, recorded on a reference made by the Magistrate under section 146(1) of the Criminal Procedure Code, the opinion of the High Courts of Assam and Nagaland, Calcutta, Madras and Mysore except Patna and Rajasthan in uniform. Whether the High Court can interfere in revision under sections 435 and 439 Criminal Procedure Code, if there is any other illegality other than the one involving the finding of the Civil Court in the order passed by the executive Magistrate under section 146(IB) of the Criminal Procedure Code, there is difference of opinion. 19.(a) With respect, I am unable to agree with the Full Bench decision of Patna High Court and that of the single Bench decision of the Rajasthan High Court for the simple reason that section 146(IB) requires the Magistrate, on receipt of the proceeding under section 145 in conformity with the decision of the Civil Court. Section 146 (ID) clearly lays down that no appeal shall lie from the finding of the civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. In this state of the law, I am inclined to think that the High Court cannot assume jurisdiction and interfere in revision with the order passed by the executive Magistrate under section 146(IB) Criminal Procedure Code. In this state of the law, I am inclined to think that the High Court cannot assume jurisdiction and interfere in revision with the order passed by the executive Magistrate under section 146(IB) Criminal Procedure Code. Therefore, I am in respectful agreement with the ratio, of the decision of this Court in Dalpathi Shetty v. Honne Gowda1and the decisions of the High Courts of Calcutta and Madras cited above. Even the Full Bench decision of Assam and Nagaland High Court, Nishi Mohan v. Sonaram2, does not support the view that the finding of the civil Court can be challenged in a revision under sections 435 and 439 Criminal Procedure Code, before the High Court. Therefore, We have to see what is the nature of the challenge in the instant case. 20. In this case, the impugned order is challenged not on the ground that there is any other illegality in the proceedings before the Magistrate but what is challenged is the finding given by the Additional Second Munsiff in Misc. No. 33 of 1971. It is significant to note the relief sought for in the petition in the prayer column which reads: “Wherefore, the petitioners abovenamed pray that this Hon’ble Court may be pleased to call for the records in J.D.L. No. 8 of 1970-71 on the file of the learned Sub-Divisional Magistrate Bangalore, Sub-Division, Bangalore and Misc. No. 33 of 1971 on the file of the learned Additional Second Munsiff, Bangalore, merged in the order in J.D.L. No. 8 of 1970-71, consider the same, set aside the order dated 2nd November, 1971, passed by the learned Sub-Divisional Magistrate, Bangalore, Sub-division Bangalore in J.D.L. No. 8 of 1970-71 in conformity with the order passed in Misc. No. 33 of 1971 on the file of the learned Additional Second Munsiff, Bangalore and declare that the petitioners were and are in possession of the farm house and cattle-shed situated in Survey No. 106 of Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk and to put them in possession of the same, in the interest of justice”. In view of the relief sought for by the petitioners, the decisions except those of Patna and Rajasthan relied upon by Mr. In view of the relief sought for by the petitioners, the decisions except those of Patna and Rajasthan relied upon by Mr. B.K. Ramachandrarao in support of his contention that the revision petition against the impugned order is maintainable, do not support his case, since all those decisions lay down that the finding of the civil Court cannot be interfered with by the High Court in exercising its revisional powers under sections 435 and 439 Criminal Procedure Code. Therefore, there is no need, in this case, to decide whether a revision petition is maintainable or not under sections 435 and 439 Criminal Procedure Code, against an order passed by the executive Magistrate under section 146 (IB) of the Criminal Procedure Code, on other illegalities in the proceedings before the Magistrate than the one challenging the finding given by the civil Court, since in the present revision petition the challenge is only to the finding of the Additional Second Munsiff with regard to actual possession, the revision petition is, therefore undoubtedly nor maintainable in view of the uniform opinion held by the several High Courts including this Court. 21. Mr. Ramashandrarao in the course of his argument fairly conceded that on account of the trend of decisions of the various High Courts, he was precluded from canvassing any interference with the finding of the Additional Second Munsiff, Bangalore, on merits. 22. However, relying upon the word ‘land’ used in the course of the order by the Magistrate, Mr. Ramachandrarao urged that, as stated earlier, the Magistrate has exercised jurisdiction in respect of the property that was not the subject of the proceedings before him and that in respect of the proceedings before him, the executive Magistrate has failed to pass any order at all. He pointed out from the warrant of attachment issued by the Magistrate, order of reference made by the Magistrate, decision of the Munsiff, the subject-matter in dispute under the proceedings, was a farm house and cattle-sheds situate in S. No. 106. He further pointed out from the impugned order that the Magistrate has passed an order with reference to lands under dispute and urged that it is not in conformity with the finding of the Additional Second Munsiff. Mr. He further pointed out from the impugned order that the Magistrate has passed an order with reference to lands under dispute and urged that it is not in conformity with the finding of the Additional Second Munsiff. Mr. Shanthamallappa urged that throughout the dispute was in respect of farm house and cattle-sheds situate in S. No. 106 of Hosakerehalli village as can be seen from the various orders passed in the proceedings, and that reference to lands in the impugned order must refer only to farm house and cattle-sheds situate in S. No. 106 of Hosakerehalli village. He invited my attention to sub-section (2) of section 145 of the Criminal Procedure Code, which lays down: “For the purposes of this section, the expression”land or water“includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property”. Relying upon the meaning of ‘land’ Mr. Shanthamallappa urged that the order is only with reference to the farm house and cattle-sheds situate in S. No. 106 of Hosakerehalli village and that therefore, according to him, the impugned order is in conformity with the finding of the Additional Second Munsiff. Mr. Ramachandrarao did not dispute that the land means and includes ‘building.‘All though the property in dispute was, as pointed out earlier, a farm house and cattle-sheds situate in S. No. 106 of Hosakerehalli village. The Magistrate should have elaborated the description of the land and the fixtures appertaining thereto. It is a palpable error which requires to be clarified. The impugned order, by no means, therefore, can be said to be not in conformity with the finding of the Additional Second Munsiff, Bangalore. It is, therefore, clarified that the Word ‘lands under dispute’ used in the course of the impugned order of the executive Magistrate, refers to the farm house and cattle-sheds situate in S. No. 106 of Hosakerehalli village and not other S. Nos. regarding which there was no dispute. 23. It is unnecessary to consider the other contentions raised by Mr. Shanthamallappa. 24. For the reasons stated above, the revision petition is dismissed with the above clarification in the impugned order. S.V.S. ----- Revision petition dismissed.