SHANKAR PATEL Vs. SABYADEVI MAHARANA AND ORS.

JUDGEMENT

(1.) IN this case the legality and propriety of the orders passed by the Sub -Divisional Magistrate, Jharsuguda, on 2 -8 -1988 and 20 -12 -1988, as when as the order of the learned Sessions Judge, Sambalpur, in proceeding under Section 145, Code of Criminal Procedure have been challenged.

(2.) THE Petitioner was a member of the second part and opposite party Nos. 1 and 2 were members of the first party in the proceeding under Section 145, Code of Criminal Procedure relating to plot No. 26314824 appertaining to khata No. 106717 of mouza Ektali. Both the parties claimed possession in respect thereof. After they submitted their written statements in the proceeding, the Magistrate made local enquiry of the disputed land in the presence of the parties and their advocate and on the basis of facts noticed by him, he declared possession of opposite party Nos. 1 and 2 by order dated 2 -8 -1988. Consequent upon the order, a Revenue Inspector was deputed to effect delivery of possession of the disputed land to the successful party. But it was not possible on his part to do so, because the description of the land, possession of which was to be delivered, was neither specific nor definite by actual measurement and the description thereof in the order of the Magistrate was vague. Accordingly, he submitted a report, whereupon the Magistrate passed a further order on 20 -12 -1988 instructing the Revenue Inspector to demarcate the land in consultation with the parties and the police. Against the above order a revision was carried to the learned Sessions Judge who was not inclined to interfere on the ground that the order under Section 145, Code of Criminal Procedure was not challenged in the higher Court and the aggrieved party may approach the civil Court far declaration of his title and possession according to law.

(3.) SECTION 148 clothes a Magistrate with jurisdiction to make local enquiry either by himself or through a subordinate Magistrate for purposes of Sections 145, 146 and 147, Code of Criminal Procedure. The report of local enquiry may be read as evidence in the case. The abject of local enquiry is to understand and appreciate the topography or the land in dispute in order to aid the Magistrate in appreciating the evidence offered by parties in Court. But it cannot take the place of legal evidence, much less the result thereof can be used as a basis for the decision. The report of a local enquiry becomes a part of the proceeding and the party affected by it is entitled to be acquainted with it so as to have an opportunity of rebutting the report if he thinks necessary to do so. The Magistrate making a local enquiry must make a note of what he saw and must place it on the record so that the parties may be in a position to know what impression he derived by such enquiry. It is possible that the Magistrate may have formed a wrong impression and if the result of the inspection is recorded and made known to the parties, they shall be in a position to remove the wrong impression by adducing evidence. A Magistrate cannot base his decision merely on the report of enquiry without recording evidence. It is incumbent on his part to give opportunity to the parties so as to receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary so as to decide whether any and which of the parties was in possession of the subject of dispute on the date of passing of the preliminary order. The report of enquiry is in aid of such evidence and not a substitute for it. An identical matter came up for consideration before this Court as reported in, 1989 (3) Crimes 698 Sanapalla Kamayya and Ors. v. Bamidi Rajanna and Ors., in which it was held as follows: