ORDER
Raj Kishore Prasad, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure, which for the sake of brevity will be referred to hereinafter as ‘the Code,’ by the then Additional Sessions Judge, Motihari, for setting aside the order of November 8, 1960, passed, by a 1st class Magistrate of Bettiah, under Section 145 of the Code, declaring only Kailash Singh, one of the opposite party here, to be in possession of the land in dispute.
2. The grounds given by the learned Judge, in his letter of reference, for quashing the impugned order, are, first, that the affidavits nave not been considered, and, Secondly; that the Magistrate has confused between ‘right to possess,’ and, ‘actual physical possession’, and has not kept in view the principle laid down by a Full Bench of this Court in S.M. Yaqub v. T. N. Basu, AIR 1949 Pat 146 (FB) at p. 162.
3. In support of the first ground of the reference, Mr. Purnendu Narayan relied on two decisions of Sahai, J. sitting singly in Jamilur Rahman v. Abdul Aziz, 1960 BLJR 179: (AIR 1960 Pat 240) and Rudra Singh v. Bimla Debi, 1960 BLJR 328: (AIR 1960 Pat 505).
4. Sub-section (1) of Section 145, which deals with the procedure where dispute concerning land, etc. is likely to cause a breach of the peace, after its amendment by Act 26 of 1955, (so far as necessary), says
“……. He (i.e. the Magistrate) shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute ………. to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute 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 claim.”
5. Sub-section (4) of Section 145, after its Amendment by Act 26 of 1955, so far as material provides:
“The Magistrate shall then, without reference to the merits or the claims of any of such. parties to a right to possess the subject of dispute, peruse the statements, documents and and davits, if any, so put in hear the parties and conclude the inquiry ……. 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.”
6. It is manifest, therefore that now under the amended Sub-section (1) of Section 145, the parties can pub in affidavits the evidence of such persons as they rely upon in support of their claim of actual possession of the subject of dispute, and, under the amended Sub-section (4) of of Section 145, the Magistrate is bound to take into consideration, in deciding, if possible, whether any and which of the parties was, at the date of the order passed earlier under Section 145(1), in actual possession of the subject matter of the dispute, also such affidavits filed by the parties, and his omission to do so will surely vitiate his judgment. These affidavits, now required to be filed by the parties by the amended Sub-section (1) of Section 145, take the place of oral evidence. The Magistrate, therefore, for deciding the question of such possession, has to peruse the statements of the parties, as also documents and affidavits, if any, so put in by the parties. The First Proviso to Sub-section (4) of Section 145, further, empowers the Magistrate, if he thinks fit, to Summon and examine any person, whoso affidavit has bean put in, as to the facts contained therein. It is plain, therefore, that under the amended Section 145 only affidavits can be put in evidence and a person cannot be examined as witness unless his affidavit is on record. A Magistrate, as such, cannot now allow a party to examine witnesses whose affidavits arc not on the record.
7. In order to decide, however, if the first ground of attack of the learned Judge against the order of the Magistrate is justified, it is necessary to know what is meant by ‘non-consideration’ of the affidavits. Sahai, J., has indicated, in his above-mentioned two decisions, the manner in which such affidavits should be considered. He has held that the magistrate should consider the affidavits of each deponent and should give his reasons for accepting or not accepting it; that such affidavits cannot be brushed aside by saying that there is oath against oath or that they cannot displace the weight of the documentary evidence, and, therefore, the magistrate should consider the affidavits in the same way in which the oral evidence is considered, and, accordingly, an order passed by a Magistrate without considering the entire documentary evidence and the affidavits cannot be upheld. I express my respectful agreement with the above interpretation of Section 145 of the Code,
8. It will appear that Sub-section (4) of Section 145 requires the magistrate to peruse the statement, documents and affidavits, if any, so put in …….” The crux of the matter is what is the meaning of the word ‘peruse’ used in Sub-section (4) of Section 145 of the Code.
9. The word ‘peruse’ has not been defined in the Code itself. Its ordinary dictionary meaning, therefore, may be taken into consideration for ascertaining the true scope and effect of the wcrd ‘peruse’ occuring in Sub-section (4) of Section 145 of the Code.
10. The word ‘peruse,’ according to the Chambers’ Twentieth Century Dictionary, Revised 1959 Edition, means: “(Shak) to pass in scrutiny on by one or piece by piece: to examine in derail: to revise: to read attentively or critically: (loosely), to read” The word ‘peruse,’ used in Sub-section (4) of Section 145, therefore, connotes “to examine in detail.” The proper meaning to give to the word ‘peruse’, as such, would be “to go through critically”, that is, to read attentively and examine critically in detail, one by one.” This appears to me to he the correct meaning and the true scope and effect of Sub-section (4) of Section 145, and the real test to be applied in judging whether a Magistrate has considered the affidavits filed, as required by Sub-section (4) of Section 145.
11. It has, however, to be borne in mind that for lack of cross-examination of the deponents, who have sworn the affidavits, the Magistrate cannot be expected to give detailed reasons for accepting or rejecting the affidavits, but he should make it apparent in his order that he has applied his mind to them. If, however, there exists one ground for accepting or refecting an affidavit, and that ground equally holds good in case of other affidavits also, then certainly the Magistrate can, in such a case, give that one ground for accepting or rejecting the affidavits of more than one person, and, he can take them all together.
12. If, therefore, the Magistrate passes an order under Section 145 without perusing the affidavits put in by the aggrieved party, such an order ex facie will be held to be improper, in that, the Magistrate has not in such a case, complied with the mandatory provisions of Section 145(4) of the Code.
13. The object in view, no doubt, in amending Section 145, was the expeditious disposal of cases under Section 145, and, for that reason now the amended Sub-section (4) of Section 145 provides that the Magistrate shall ‘conclude the enquiry, as far as may be practicable,’ within a period of two months form the date of the appearance of the parties before him.” But this does not mean, however, that the Magistrate should pass an order under Section 145, without considering the affidavits, if any.
14. In the light of the above-mentioned test, let us see if the Magistrate has complied with the mandatory provisions of Sub-section (4) of Section 145 of the Code.
15. In the instant case, on reading the order complained of, of the learned Magistrate, I am of the opinion that it is not correct to say that the affidavits of the parties or of the petitioners have not been considered by him. I find that the learned Magistrate has mentioned, first, that the first party filed 30 affidavits and the second party filed 14 affidavits, and, then mentioned further the names of all the persons swearing the affidavits. He also critically examined each of the affidavits of both sides. I say so, because I find that the Magistrate examined the quality and reliability of each deponent, for example, he has mentioned the names of the persons swearing the affidavits, on behalf of the first party, who were boundary, witnesses in order to show their competency and reliability. He has also mentioned that among the persons swearing the affidavits, on behalf of the first party, one was an Amin, one was the labourer one was the vendor, and so on. He, then considers the affidavits filed on behalf of the second party. He did not accept the affidavits filed by the second party, because he found that the statements contained therein were not supported by any document, although they claimed to have land near the disputed land.
The other reasons given by the teamed Magistrate for not accepting the affidavits of the second party were that they were not mutated and had no settlement paper and the and in dispute was Gairmazrua-am. He has also given other reasons for not accepting the affidavits of the petitioners here. He accepted the affidavits filed by the first party because the statements contained therein, were supported by documentary evidence, and, the persons swearing the affidavits were either boundary witnesses or persons having land and houses nearabout the disputed land or who had worked as labourer, or, who had measured the land in dispute or settled it with the vendor of Kailash Singh. In my opinion, the learned Magistrate substantially complied with the mandatory provisions of Sub-section (4) of Section 145 in coming to the conclusion, after a consideration of the documentary evidence, and the affidavits, of both sides as also other facts and circumstances of the case, that Kailash Singh, the opposite party here, alone was in possession, and, therefore, his order complained of, is invulnerable on the first ground given, by the learned Judge.
16. It is well settled that in a proceeding under Section 145 of the Code of the Magistrate is concerned only with the question of actual possession, and he must determine that question irrespective of the right to possession. It is equally well established, that the right to possess does not entitle a person to get a declaration of actual possession, in a proceeding under Section 145 of the Code and, as such, the ‘right to possess’ is not synonymous with ‘actual possession.’ The expression ‘actual physical possession’ connotes and implies that the person concerned is actually in physical possession, but, the expression ‘right to possess’ connotes that the person is not already and actually in physical possession, but he has the right to be to possession, by dispossessing the person, who without any such right, is in actual possession, as a trespasser.
17. Sub-section (1) of Section 145 of the Code' so far as material, itself requires the parties concerned
....... to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute ................"
18. The possession contemplated in this section is the "actual possession of the subject of dispute." Actual physical possession means the possession of the person who has his feet on the land, who is ploughing it, sowing or growing crops in if, entirely irrespective of whether he has any right or title to possess it. But 'actual possession' does not always mean 'actual physical possession.' For example, if there is a tenant occupying a house and there is dispute between two persons, each claiming to be the landlord, admittedly neither is in actual physical possession, still a proceeding under Section 145 of the Code will lie, and in such a case, the decision will rest upon who is in "actual possession" by realisation of rent from the tenant. 'Actual possession,' postulated by Sub-section (1) of Section 145, however, is not the same as a 'right to possession' nor does it necessarily mean lawful or legal possession. It includes even the possession of a mere trespasser. It should, however, be read and tangible, that is, there ......... should be effective occupation and control over the property.
This is clear from Sub-section (4) of Section 145, for the Magistrate is not to determine who has a ‘right to possess,’ but he has to decide, it possible, the question whether any and which of the parties was at the date of the order made under Sub-section (1) of Section 145 in such possession, that is, in ‘actual possession’ of the subject of dispute, as envisaged by Sub-section (1) of Section 145 of the Code. Sub-section (1) of Section 145, therefore, brings out clearly the intention of the Legislature that in such a proceeding under Section 145 the Magistrate is concerned only with the fact of actual possession’ of the subject of dispute and this question has to be decided under Sub-section (4) of Section 145 of the Code by the Magistrate.
19. In the light of the above well-established principles, let us now see if the order of the Magistrate suffers from the second infirmity pointed out by the learned Judge.
20. In the instant case, I find that the Magistrate has considered only the question of actual physical possession, because he has referred to the evidence of such actual possession, of Kailash Singh, who alone, amongst the first party has been declared to be in possession of the disputed land.
21. It should be borne in mind that the Magistrate, in a proceeding under Section 145, has to decide the question of actual possession at the date of the preliminary order made under Sub-section (1) of Section 145 of the Code. The only exception to this rule is the case where one of the parties has been forcibly and wrongfully dispossessed within two months of the date of the order, in which case the Magistrate has to treat such person as having been in possession at the date of the preliminary order, as provided by the Second proviso to Sub-section (4) of Section 145. Except as provided by this Second Proviso, the Magistrate is mot concerned with previous possession, or with the question as to how the possession was obtained though he may take these facts into consideration in deciding the question of ‘actual possession’ at the date of the preliminary order under Section 145(1). In arriving at a decision, he should have due regard to the nature of the property and the mode in which acts of possession may be exercised over the property.
22. In the light of the above principles underlying Sub-section (4) of Section 145, let us examine the order under reference of the Magistrate.
23. In the present case, the order under Section 145(1) was passed on the 20th May, 1960 and, therefore, the Magistrate was justified in considering the evidence of actual possession at that date. The learned Judge took the view that he held in a Sessions Trial disposed of on the 29th March, 1961, that Kailash Singh was not in possession on the 5th November, 1959, the date of occurrence in that case. In my opinion, the Magistrate was concerned with the actual possession of the parties on the 20th May 1961, when the preliminary order under Section 145(1) was made.
24. I, therefore, find that the learned Magistrate has committed no error of law, nor, has he contravened the mandatory provisions of Sub-section (4) of Section 145 of the Code in deciding the dispute between the parties. In my opinion, therefore, the order of the learned Magistrate does not suffer from any of the two infirmities pointed out by the learned Judge.
25. For the reasons given above, I am unable to accept the reference, and accordingly it is discharged.
