ORDER
D.P. Sinha, J.
1. This application is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) between the parties relating to survey plot No. 2864 measuring about 16 dhurs situated in village Habib Nagar within the jurisdiction of Siwan Police Station. The order has gone against the petitioner who was the First Party to the proceeding. The opposite party in whose favour the Magistrate has declared the possession was the Second Party thereto.
2. The case of the petitioner was that the land had been settled along with other lands by the ex-landlord by means of a patta dated 1-4-1939 with one Deo-narain Ahir who came in possession. After the death of Deonarain Ahir, his sons Jamuna Chaudhary and others, came in possession, and. subsequently they sold it by a registered kebala dated the 7th February, 1961 to the petitioner and put him in possession thereof. After the petitioner came in possession, he erected a palani and fixed nad and khurta and kept his cattle thereon. It was said that the disputed land was contiguous to his ancestral land covered by plot No. 2866. The case of the opposite party, on the other hand, was that they had taken settlement of the disputed land from the landlord in 1934, and, subsequently they had constructed a well on an area of 5 dhurs of the land. They also claimed to have perfected a title in themselves by adverse possession.
3. Learned Counsel for the petitioner has assailed the order of the learned Magistrate on the ground that he had failed to consider the affidavits of the witnesses of the petitioner. The contention appears to have force as on a perusal of the impugned order it appears that the Magistrate has dismissed the affidavits with the observation that in face of the documentary evidence, the affidavits did not inspire confidence. This is not the way in which the affidavits of the witnesses should be considered by a Magistrate while deciding the question of possession in a proceeding under Section 145 of the Code. Sub-section (4) of Section 145 lays down that the Magistrate shall, without reference to the merits or the claims of any of the parties before him who had right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, put in by the parties and also hear the parties and then conclude the enquiry. According to the said provision the Magistrate has not only to consider the documents and the written statements filed by the parties but also the affidavits of their witnesses and he has to come to a decision on the Question of possession after taking into consideration all the three things namely, the written statements, documents and affidavits. The law requires that he must peruse the affidavits which means that he must critically examine them, and that means that he should give grounds for accepting or rejecting the affidavits of each witness unless he finds that the affidavits are of a stereotyped nature in which case he can give the same reason for discarding all the affidavits. In the present case he has not said that the affidavits are stereotyped, and learned Counsel for the petitioner has read out some of the affidavits of the witnesses to show that the Magistrate could not have described them to be stereotyped ones. There can be little doubt that the Magistrate has not examined the affidavits critically as he should have done and this appears to have caused prejudice to the petitioner. In the circumstances, the impugned order dated the 27th November, 1970 is set aside and the case is remitted to the Court below for a fresh decision according to law in the light of the observations made above, on the materials already on the record.
4. In the result, the application is allowed with the observations made above.