B. JAYARAMA MUDALIAR Vs. BHOOMI AMMAL,

JUDGEMENT

(1.) : This revision proceeding by the first respondent in M. C. No. 72 of 1962 before the Sub Divisional Magistrate, Villupuram will have to be allowed on the short point that the learned Magistrate, in deciding this question of dispute concerning user of immoveable property under Sec. 147 Code Criminal Procedure has acted upon the evidence of affidavits, which does not appear to be warranted by me terms of the section. The learned Magistrate apparently thought, upon the analogy in the. specific provision in Sec. 145(1) Criminal Procedure Code, and the employment of the words "and the provisions of Sec. 145 shall, as far as may be, be applicable" in Sec. 147(1-A) Criminal Procedure Code, that he could receive affidavit evidence even in proceedings under the latter section. The very point came up before a single Judge of the Patna High Court in Manickchand Vs. Bnubaneswar, A.I.R. 1961 Patna 278 . The learned Judge pointed out that Sub-Section (1) of Sec. 145 makes specific provision that the parties should be called upon to adduce evidence by affidavits, while Sub-Section (1-A) of Sec. 147 is in very different terms that the magistrate shall receive all such evidence as may be produced by the respective parties. The learned Judge then proceeded to express his view that the Magistrate had no jurisdiction in that light of the circumscribed scope of Sec. 147(1-A) contrasted to Sec. 145 Code Criminal Procedure to can upon parties to file affidavits in a proceeding under Sec. 147 Code Criminal Procedure or to accept and act upon such affidavit evidence. It appears to me that this view of the respective scope of the two sections is justified, for, had the Legislature intended that even in proceedings under Sec. 147, Code Criminal Procedure affidavit evidence could be competently received, the necessary words would have been introduced in Sec. 147 (1-A) Code Criminal Procedure which is not the case.

(2.) Under the circumstances, since the Magistrate has received and acted upon evidence, which could not be legally received, within the scope of the proceeding before him, I am constrained to permit the revision proceeding to quash the order of the learned Magistrate, and to remit the proceeding for further disposal according to law. The learned Magistrate must now hear the evidence adduced by the parties and not affidavit evidence and act according to the tenor of Sec. 147 Criminal Procedure Code. Ordered accordingly. Order accordingly.