BAJI GURU AND ORS. Vs. GADADHAR PADHAN

JUDGEMENT

(1.) THIS revision has been filed by the members of the second party against an order under Section 145, Code of Criminal Procedure maintaining the possession of the first party over the disputed properties. The order has been challenged on various grounds, hut on the facts admitted at the time of hearing it is not necessary to consider all of them. In a proceeding under Section 145, Code of Criminal Procedure the main point for decision is as to which of the parties was in possession of the subject matter of dispute on the date of the preliminary order or within two months preceding it, as the case may be. The question of title is irrelevant for the purpose as the whole enquiry is to be confined to the question of actual possession. The learned Magistrate, in arriving at his conclusions that the members of the first party were in possession, has committed a number of irregularities in his order, on account of which it cannot be sustained. It is the duty of the Court to decide the question of possession by taking into consideration the written statements, the documents and the affidavits filed by the respective parties. In this case the learned Magistrate has not dealt with either the written statements or the affidavits filed by the respective parties. He has summarily disposed them of with the observation that "on examination of the affidavits and written statements filed by the parties it is seen that the witnesses of each of the parties have deposed in support of the respective parties and as such it is very difficult to rely only on the written statements and affidavits". He should not have dealt with these affidavits in such a superficial manner. He should have considered the statements contained in the affidavits, weighed the evidence and arrived at his conclusions. Secondly he has relied on a prosecution report submitted by the Tahsildar and a notice issued by the Forest Department in support of his conclusion regarding possession. The prosecution report as such is not evidence and the notice issued by the Forest Department was of March 1965. Thirdly he made a local inspection or spot enquiry as he calls it on 2 -4 -1966 and utilised what was represented to him by the villagers which cannot be evidence on which he can base his conclusions. As a matter of fact thereby he seems to have taken the role of a witness in the case. Thus instead of considering the materials on which he ought to have relied in arriving at his conclusion the learned Magistrate has resorted to extraneous matters and materials to give his finding. His order based on such materials cannot be legal and valid. In these circumstances, the order is set aside and the case is sent back to the S.D.O., Pallahara for fresh disposal according to law after taking into consideration the written statements, the affidavits and the documents, if any, filed by the respective parties. On a consideration of such materials he has to come to a finding as to which of the parties was in possession on the date of the preliminary order or within two months preceding that, as the case may be. The revision is accordingly allowed.