ORDER
K. Sahai, J.
1. This application by the first party is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure in respect of 58.48 acres, equivalent to 93 Bighas 11 ka-thas 7 dhurs of land. I will refrain from mentioning the respective claims of the three parties involved in this case except for such part of their claim as becomes necessary to mention. I will also refrain from referring to the merits of the parties’ cases because I feel, after hearing both the parties, that this is a case which should be remanded.
2. Appearing on behalf of the first party-petitioners, the first point which Dr. Sultan Ahmad has taken is that the appointment of a pleader commissioner in this case by the Magistrate was illegal and that, in any case, the pleader commissioner’s report should not have been considered inasmuch as it was not legally put in evidence on being formally proved in accordance with law. In my judgment there is no substance in this point. Dr. Sultan Ahmad has drawn my attention to section 148 of the Code of Criminal Procedure which provides that the District Magistrate or the Sub-divisional Magistrate may depute any magistrate subordinate to him to make a local enquiry in a case under Chapter XII (which includes Section 145} and that the report of the Magistrate so deputed would be read as evidence in the case.
He has contended that, there being no provision for appointment of a pleader commissioner, the only person who can be deputed to hold local enquiry is a subordinate Magistrate under Section 148. It seems to me, however, that this contention is misconceived. If a Magistrate feels that it is necessary to get some one to report upon the physical features of the land in dispute between the parties or the measurements of those lands, I do not see why he cannot depute a pleader commissioner for the purpose.
The only difference is that the report of a Magistrate deputed under Section 148 can be read in evidence without formal proof whereas the report of a pleader commissioner could not, under the Code of Criminal Procedure as it stood before
the amendments made by Act XXVI of 1955, be read in evidence without such proof. This is supported by the decision of a Division Bench of this Court in Chulai Mahto v. Surendra Nath Chatterji, ILR 1 Pat 75 : (AIR 1922 Pat 224).
3. Dr. Sultan Ahmad has argued that even under Section 145, as it stands after the amendments made by Act XXVI of 1955, the report of a pleader commissioner cannot be considered by the Magistrate unless and until it is put in evidence by giving formal proof. He has also argued that a report of a pleader commissioner is not a document within the meaning of Section 145 at all. There seems to be no substance in either of these arguments. The only provision under Section 145, as it stood before the last amendment, for consideration of materials was made in Sub-section (4), which laid down that the Magistrate should “peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject”.
4. Under Act XXVI of 1955, the following words have been added to Sub-section (1) of Section 145; “and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.” Sub-section (4), as amended, provides that the Magistrate should “peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period” of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.”
The first point that is absolutely clear from the amendments made is that the intention of the legislature was that a proceeding under Section 145 should be concluded as expeditiously as possible. This is the reason why the proceeding is to be concluded, if possible, within two months from the date of appearance of the parties and this is also the reason why the taking of oral evidence, with the delays consequent upon taking of such evidence, has been done away with unless, as provided in the first proviso to Sub-section (4), the Magistrate himself thinks that he should summon and examine any person whose affidavit has been put in.
5. As the taking of oral evidence even on the question of possession has become optional, the Legislature could not have possibly contemplated that all private documents should be formally proved before the Court. This also appears to follow from the amendments. There are two points which support this conclusion. Firstly, the provision in Sub-section (1) is that the parties are to ‘put in’ their written statements and also to ‘put in’ such documents as they rely upon. It is only with respect to affidavits that Sub-section (1) lays down that the parties may be called upon to adduce the evidence of persons upon whom they rely by putting in their affidavits.
Secondly, the provision in Sub-section (4) is that the Magistrate has to peruse the written statement, documents and affidavits. There is nothing in this sub-section to show that the Magistrate can only peruse a document put in by a party if it is for-
mally proved, nor is there anything in it to show that the document must be gut in evidence by getting it formally proved.
6. It seems to me to be manifest, therefore, that a document put in by a party in a case under Section 145 need not be formally proved before it is considered by the Magistrate. The argument of Dr. Sultan Ahmad that a report is not a document is obviously wrong, because I do not see how a written report can be described otherwise.
7. Another point which Dr. Sultan Ahmad has raised is that the learned Magistrate was wrong in taking into consideration the opinion of the pleader commissioner as to the possession of the parties. This contention appears to me to be well-founded. While the report of the pleader Commissioner relating to the physical features of the lands and/or measurements can well be taken into consideration by a Magistrate, his opinion as to the possession of any party is not based upon his personal knowledge and, that being so, cannot be taken into consideration.
8. The first party’s case is that Abdul Aziz of the second party was in possession of the disputed lands as his agent up to a few years before the date on which the proceeding was started. The learned Magistrate has observed in this connection:
“That Abdul Aziz continued in possession not as agent but as lessee, is also proved from the fact that in the show cause petition filed by the first party in Section 144 proceeding out of which the present proceeding sprang up it was clearly stated by the first party in para 19 of the written statement that Abdul Aziz and others 2nd party were never agent and servants of the 2nd party”.
Dr. Sultan Ahmad has urged that, while the learned Magistrate has correctly quoted paragraph 19, he has failed to notice that the word ‘never’ in that paragraph was a mistake for the word ‘mere’ and that this would have been clear to him if he had only perused paragraph 22 of the same written statement. I have looked into paragraphs 19 and 22 of the written statement. In paragraph 19, the first party have stated that the claim of the second and third parties was false and frivolous and that as a matter of fact they were never the tenants of the lands in question. Thereafter, the sentence is, “Indeed they were never agents and servants of the first party”. Paragraph 22 is as follows :
“That is a settled principle of law that the possession of an agent or servant, if any, is possession of the master and as such also the 1st party remained in continuous possession”.
Reading the “two paragraphs together, it is obvious that Dr. Sultan Ahmad’s argument is correct that the word ‘never’ in paragraph 19 is a mistake for the word ‘mere’. The learned Magistrate has wrongly relied upon this paragraph as showing that the first party admitted that Abdul Aziz and others were not their agents and servants.
9. The last point which Dr. Sultan Ahmad has urged is that the learned Magistrate has attached no importance to the affidavits filed on behalt of the parties and has, in fact, made mistakes even in mentioning the number of persons who swore affidavits on behalf of each party. This is correct. Although the affidavits of 19 persons were filed on behalf of the first party, the learned Magistrate has mentioned in his judgment that affidavits of only four persons were filed on their behalf. Again, although the affidavits of ten persons were filed on behalf of the second party the learned Magistrate
has mentioned that those of 18 persons were filed on their behalf. In fact, the learned Magistrate has considered the evidence of five witnesses on behalf of the first party though he has said that the affidavits of only four persons were filed on their behalf,
10. Appearing on behalf of the second party, Mr. S. N. Sahay has urged that the learned Magistrate has decided the case upon the important materials before him and he has considered the affidavits of only those persons whose affidavits he considered to be worth discussing. I do find that the learned Magistrate has considered the documentary evidence but it is obvious that he has not attached any importance to the affidavits at all. Had he done so, he could not have made mistakes in mentioning the number of persons whose affidavits were filed on behalf of each party.
In view of the latest amendment of Section 145, it is not necessary to examine witnesses in Court. The learned Magistrate is entirely wrong, however, in thinking that it is not necessary even to consider the affidavits which now take the place of oral evidence given by witnesses. Sometimes, I find that Magistrate dispose of all the affidavits on behalf of both the parties merely by saying that they are oath against oath even that is improper. The Magistrate should consider the affidavit of each deponent and should give his reasons for accepting or not accepting it.
Even when witnesses are examined and cross-examined in Court, it is possible for a trial Court to say that there is oath against oath. It should be obvious that that would be hardly a consideration of the oral evidence. The same rule should apply in the case of affidavits. In my judgment the learned Magistrate’s judgment is vitiated for non-consideration of all the affidavits filed on behalf of the parties. He was obviously not even aware of the number of affidavits filed on behalf of each party.
11. In view of non-consideration of the affidavits, I allow the application, set aside the judgment of the learned Magistrate and remand the case for fresh disposal in accordance with law and in the light of the observation which I have made above. The case will now be placed for disposal before another Magistrate in accordance with the directions of the Sessions Judge. The Magistrate before whom this case is placed will proceed to dispose of it on the materials which are already on record. He will not allow any party to put in further materials.