JUDGMENT
Jwala Prasad, J.
1. This is an application against an order of the Magistrate, dated the 26th March 1918, passed under Section 145 of the Code of Criminal Procedure, declaring the first party to be in possession of the property in dispute.
2. The first ground is that the Magistrate has not received the evidence both oral and documentary on behalf of the second party in order to prove his possession. This application is based upon the following facts.
3. After the preliminary proceedings and adjournments, the case was ultimately fixed for hearing for the 21st of March. On that date the parties filed their hazris or list of witnesses in attendance, In that list on behalf of the petitioner, second party there were the names of two witnesses Baburam Chamar and Kodai, Nos. 1 and 2. On the 21st March the case was not taken up, as the Court was busy in some other case, and consequently the present case was adjourned to the next day the 22nd March. On that date, two witnesses, one on behalf of the first party and another on behalf of the second party appear to have been examined, and the case was ordered to be taken up on Sunday at 9 A.M. (24th March). On the 24th March some witnesses on both sides were examined. Dwarika Rai the second party was ill on that date, and on his behalf Raghu Rai, Bartu Chamar and Kari Teli were examined. The case was then adjourned to the 26th March for orders. No list or hazri of witnesses, was filed on that date apparently as the list filed on the 21st March was continued up to that date. Two of the witnesses in that list, namely, Baburam and Kodai were not examined, nor the Kobala and the receipts on behalf of the second party were proved. These documents were filed on the 18th of October 1917 when the proceeding was in the stage of Section 144. The present proceeding under Section 145 was drawn up on that very date the 18th October.
4. The contention of the second party is that on account of the illness of Dwarika Rai (second party), he wanted an adjournment of the case in order to examine the witnesses and to prove the documents. The Magistrate in his first explanation of this 20th of May reports that the petitioner did not really pray for an adjournment as he was away ill. This must be accepted to be correct, but something did transpire on account of the illness of the second party, as it appears that the first witness examined on the 24th March on his behalf was Raghu Rai who said that Dwarika Rai was ill, and the Magistrate noted “second party being ill, is not able to attend.” After the close of the evidence of the second party, this witness Raghu Rai appears to have been re-called simply with a view to prove the illness of Dwarika Rai. At this time he says: Dwarika Rai is very ill of saree (asthma); Janki is looking after him.” There was then cross-examination on behalf of the first party to show that there were other members in the family to look after him, and all that was disclosed in the cross-examination, was that Dwarika Rai had two minor sons only. Thus from the evidence on the record, it is clear that the illness of the second party petitioner was raised and prominently brought to the notice of the Magistrate in order to show that the case could not be properly looked after on that date on behalf of the second party. It is said that no petition was filed, 24th March was a Sunday and no stamp and cartridge paper were available. Be that as it may, it is certain that two of the material witnesses on behalf of the second party mentioned in the list of the 21st were also shown to be present on every preceding day as witnesses on behalf of the second party. Kodai Mahto is also a marginal witness on the Kobala of the second party. I, therefore, hold that the second party was not able to give all the material evidence in the case both oral and documentary to prove his possession.
5. In was mentioned in the petition filed by the second party in this Court that the Magistrate refused to admit the Kobala and the rent receipts produced by the petitioner and did not examine the material witnesses on his behalf. In the second explanation called for by this Court now submitted, the Magistrate does not deny the above allegation of the petitioner. The Magistrate however says that these documents “would more probably be filed in a civil suit regarding the land and that proceedings under Section 145 should not be allowed to develop into quasi civil suits. Even if that were proved the question is not that of title but that of possession.” This apparently might be the reason why the Magistrate did not consider it necessary to allow the second Party to prove the documents or to examine the witnesses in question. The Magistrate is certainly right that Section 145 concerns self only with possession and not with title. But I do not appreciate the contention of the Magistrate that the documents had nothing to do with possession. The rent receipts were certainly evidence of possession and would have proved if admitted that the receipts were granted in respect of the land in dispute by the landlord, because the second party was in possession of the land. The Kobalas, it is contended, recite that the second party was in possession from before their execution.
6. The Magistrate in his order under Section 145 has felt difficulty in coming to a conclusion upon the oral evidence of the Parties. He open the oral evidence of the words: “There are discrepancies in the evidence on both sides in this case.” The receipts and the documentary evidence that the second party wanted to file in the case, might have thrown light upon the evidence offered by the second party and might have perhaps assisted the Magistrate in coming to a conclusion regarding the possession of the land. So it cannot possibly be said that these documents were documents relating to the title and had nothing at all to do with possession that the Magistrate had to enquire under sect on 145 Even documents of title pure and simple are often of great assistance in arriving at a right conclusion upon possession. I therefore, think that there has been an error in the exercise of jurisdiction by the Magistrate in this Case in not admitting the documents proposed to be filed by the second party and in not examining the witnesses in connection therewith. Paitali Singh v. Ganapati Kuer 45 lad. Cas. 337 : 19 Cr. L.J. 529.
7. The order of the Magistrate is, therefore, set aside and the case remanded for a re-determination as to the possession of the contending parties under Section 145 of the Code of Criminal Procedure after taking the remaining evidence both oral and documentary on behalf of the second party.
8. The order of the Magistrate regarding costs in this case cannot certainly be supported. The order under Section 145 was passed on the 25th March On that date an application was made by the first party asking for costs to be allowed with the details of the costs entered therein. This was disposed of by an order of the 5th April on the margin of the petition Rs. 60 allowed.” This order was passed without any notice to the petitioner, in the explanation to this Court the Magistrate says that such notice is not required by Section 148. Certainly no notice is expressly required because Section 148 contemplates that an order for costs should be passed then and there in the presence of the parties: but if the order is not passed on that date, an application made subsequent to the order under Section 145 regarding costs, cannot be disposed of without fully hearing the opposite party against whom the order under Section 145 is to be directed. This need not have been provided for in Section 148 but it is consistent with the principle that no order can be passed against any person without giving him an opportunity to be heard. This view was adopted in a series of cases which appears to be a settled point, vide, Prokash Chunder Sarkar v. Ram Prasad Pattak 28 C. 302 : 5 C.W.N. 291 and Dowlat Koer v. Siva Pershad 10 Ind. Cas. 615 : 15 C.L.J. 267 : 15 C.W.N. 45 : 12 Cr. L.J. 319, This Court also has in agreement with the views of the authorities mentioned above in more cases than one, held that no order as to costs can be passed under Section 148 without notice being given to the opposite party against whom the order is made. The order as to costs is also set aside, and as the Magistrate has been directed to re-try the case under Section 145, if he comes to a conclusion in favour of any party be might pass an order against the losing party on compliance with the above direction?.