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3. On 8th August 1950, Jitendra lodged an information at the Mangalkote Police Station to the effect that his brother Harendra was trying to shut him out from his portion of the homestead by closing down the communicating door between the two portions and that there was an apprehension of a breach of the peace. He did not mention Kshudiram, but the latter appeared during the police enquiry which followed and asserted his claim to the disputed property on the basis of his purchase. The police appear to have thought that the dispute was really one between the two brothers on one side and the stranger-purchaser on the other and they recommended initiation of a proceeding under Section 145, Criminal P. C, on that basis, as also attachment of the disputed property and an order under Section 107, Criminal P. 0., upon the two brothers. On receipt of the police report, the Sub-Divisional Officer of Katwa, Sri A. B. Eudra, drew up a proceeding under Section 145 on 30th August 1950 against Jitendra and Harendra as the First Party and Kshudiram as the Second Party. An application made by Jitendra that Harendra should be transferred to the category of the Second Party was rejected on 1st November 1950.

34. These two applications for revision have been heard together and are being disposed of by a single order. The first rule in Criminal Revision Case No. 660 of 1951 is directed against an order of Sri A. B. Rudra, Sub-Divisional Magistrate of Katwa, dated 11-5-1951 directing the O/c Mongalkote P. S. to deliver possession of a certain property to Jitendra Nath Mandal by breaking open the locks if necessary. The second rule in criminal Revision Case No. 711 is directed against an order of Sri 0. L. Choudhury, Magistrate, 1st class, Katwa, dated 22-2-1951, made under Section 145 (6), Criminal P. C., declaring the said Jitendra Nath Mandal to be in possession of the disputed property until evicted therefrom and forbidding all disturbance of such possession until such eviction. The disputed property which is the subject-matter of both the applications is the north-western corner of a piece of land bearing Dag No. 772 under Khatian No. 84 mouza Simulia of the approximate area of 1/2 cotta, with a hut standing thereon.

45. An application was made before the Sessions Judge for quashing the order and while it was pending, an application was made by Jitendra before the trying Magistrate for restoration of possession under Section 145 (6), Criminal P. C. As the criminal motion was pending, the learned Magistrate refrained at that stage from passing any order, but before it was finally disposed of (it was rejected on 30-4-1951), he was transferred from the Station and an application was made before the Sub-divisional officer Katwa to pass an order for restoration of possession. In the meanwhile, Khudiram had instituted a Civil Suit before the Munsiff's Court, Katwa, being Title Suit No. 91 of 1951 for declaration of his title in the disputed property and applied for an interim injunction restraining the Mondal brothers from disturbing his possession. The learned Munsiff sent a letter of request to the Sub-divisional officer, Katwa requesting him to stay his hands until the application for injunction was disposed of. But this the Sub-divisional officer, Katwa refused to do and by his order dated 4th May 1951, directed the O/c Mangalkote P. S. to restore possession of the land which is the subject matter of the Section 145 proceedings. On nth May 1951, he further ordered the O/c Mongolkote P. S. to deliver possession to Jitendra by breaking open the locks if necessary. Against this order an application was made to the Sessions Judge who expressed an opinion that in a situation like this the criminal Court ought to respect the order of the learned Munsiff, but he declined to interfere. We might have been called upon to deal with the question as to whether the Sub-divisional officer, Katwa acted properly in ignoring the request of a civil Court to stay his hands, both from the point of view of law and propriety and that sense of 'comity' which ought to exist between the Courts of our land; but this has become unnecessary because the application for an injunction ultimately failed and has been dismissed by the learned Munsiff. It is clear therefore that in the civil suit, Khudiram failed to make out a prima facie title. In these proceedings, however, we are not concerned with the title to the disputed property but possession. In a well-reasoned judgment the trying Magistrate has held that Jitendra was in possession and was ousted by Khudiram. This finding has been upheld by the learned Additional Sessions Judge of Katwa and we find no reason to differ with him. The orders mentioned above, are however assailed on several grounds which I shall now proceed to consider.

61. The Magistrate is not functus officio, immediately he pronounces the final order in the prescribed form. He can still deal with an application for the auxiliary order of restoration to possession. In this case, this is exactly what happened, since an application was made before the trying Magistrate for such a relief. He did not deal with the application at that stage because a criminal motion was pending against his final order as made on 22-2-1951. But before he could deal with that application he was transferred. The next question that arises is as to whether the Sub-Divisional Officer, Katwa could then deal with that question. It is admitted that the original proceedings under Section 145 were initiated by the Sub-Divisional Officer who then transferred it to Sri C. L. Chaudhury for disposal, which he was quite competent to do. It is also admitted that the Sub-divisional officer could withdraw the case from the said Magistrate and either try it himself, or retransfer it to some other Magistrate subordinate to him. But it is argued that in this case the Sub-divisional Officer, Katwa did not make any order of withdrawal or re-transfer. This arguments ignores the effect of the transfer of Sri C. L. Chaudhury from the station. Since the proceedings were not finally concluded and the trying Magistrate was transferred, the proceedings automatically reverted back to the Sub-divisional officer and it was not necessary for him to formally withdraw it from Sri C. L. Chaudhury. The principle of a "Successor Court" as in civil cases would not apply to such a proceeding and I cannot see any valid reason why the Sub-divisional officer, Katwa could not deal with the application for restoration of possession and pass the orders dated 4th and 11th May 1951. This point accordingly fails.