GANGAMMA Vs. ALLAMMA

JUDGEMENT

(1.) This revision is directed against the order of the Taluk Magistrate, Turuvekere in a case under Sec.145 of the CrlPC. The Sub-Inspector of Police, Turuvekere, sent a report to the Magistrate saying that Gangamma and Shivarudraiah, members of the first party and Akkamma and Nanjamma, members of the second party were likely to commit breach of the peace in respect of three Survey Nos.2/2, 15/7 and 58/1 of Lokammanahalli village. They were claiming respective possession and were likely to appropriate coconut crop growing over the trees existing within these survey numbers. The lands formerly belonged to one Guddaiah, who died and was survived by Smt Gangamma, his widow, and three daughters, of whom petitioner-1 is one of the daughters. The petitioner set up a will written by Guddaiah in her favour, but the other two daughters, namely, respondents 1 and 2, denied the execution of that will. In the year 1974 some dispute was raised regarding mutation. The Tahasildar made his order on 26-12-1974 to the effect that the names of petitioner-1 and respondents 1 and 2 be mutated against these lands. Being dissatisfied with this order, an appeal was filed to the Deputy Commr, which was allowed and the case was remanded for fresh enquiry. Alter remand, the Tahasildar again made his order dt.22-5-1976 holding that the names of all the three parties were to be recorded against these survey numbers. That order of the Tahsildar was again challenged in appeal before the Deputy Commr, which is since pending. On 13-7-1976, however, the aforementioned report was sent by the Sub-Inspector of Police, Turuvekere and upon that report, the Taluka Magistrate initiated proceedings under S.145 CrlPC. After calling upon the parties to put in their written statements and after admitting affidavits on behalf of them the learned Taluk Magistrate came to the conclusion that Sy.No.58/1 be given in the possession of the first party while Sy.Nos.2/2 and 15/7 be given in the possession of the second party. The petitioners of the first party having felt aggrieved of that decision, have preferred the present revision.

(2.) The learned Counsel for the petitioners contended in the foremost that the procedure following by the learned Magistrate was not in accordance with law. He referred to sub-sec(4) of S.145 and stressed that the case was decided upon statements of witnessses recorded by the Magistrate at the time of his local inspection. The learned Counsel contended that the said statements could not be treated as evidence, which could be considered for deciding the question regarding possession. Under sub-sec(4) of Sec.145 CrlPC the Magistrate could peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them and "take such further evidence, if any, as he thinks necessary", for the purpose of deciding the question regarding possession. An argument was raised that the statements of witnesses recorded by the Magistrate during the course of local inspection was ''such further evidence" which he thought necessary. In that connection reference was made to the definition of 'evidence' as provided for in S.3 of the Indian Evidence Act. That definition runs as below:

(3.) A perusal of the order written by the learned Magistrate points out that he perused the written statements and the affidavits. He referred to his earlier inspection proceedings dt. 13-7-1976 and found lot of contradictions' in the affidavits filed by the witnesses. He therefore concluded that he was unable to decide as to which party was in possession. He thought fit to have another spot inspection which he made and at that time recorded the statements of certain witnesses. At that time also one set witnesses stated in favour of party No.1, while another set of witnesses stated in favour of party No.2. From these statements, the learned Magistrate concluded that a division of the three survey numbers should be made between the two parties. The learned State Public Prosecutor rightly pointed out that the procedure adopted by the learned Magistrate for recording evidence was highly defective. The expression "such further evidence, if any, as he thinks necessary" does not include such evidence of statements of witnesses, who are neither administered oath nor cross-examined in Court. Therefore, it could not be stated that the fact regarding possession was proved on the basis of such further evidence as was recorded by the learned Magistrate.