Narayana Rai Kudoor, J.
1. This Criminal Revision Petition one under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973, (for short 'the Code') by the member of 'B' party is directed against the order dated 4-11-83 passed by the Sub-Divisional Magistrate, Kundapur, in No. MAG.C.R.I. 3/83-84 declaring that the members of 'A' party was in possession of the disputed lands on 10-10 1981 the date of the order of the Land Tribunal and also on the date of the preliminary order of the Court dated 23-6-1983 and that the 'A' party is entitled to the possession of the said lands until evicted therefrom in due course of law.
2. Few facts relevant for the disposal of this revision may be stated as under:
There was dispute between members of the 'A' and 'B' party in respect of Sy. No. 5/11,5/15,5/16,5/17,5/18,5/24,5/26, 5/27, 5/28 and 5/29 in all measuring 3 acres 80 cents of Mallar village. The Police Sub-Inspector of Shirva brought to the notice of the Sub-Divisional Magistrate, Kundapur through the F.I.R. dated 20-6-1983 that there existed adispute between the members of 'A' and 'B' party over the said lands and the said dispute was likely to cause breach of the peace and violence including bloodshed and had requested the Sub-Divisional Magistrate to initiate proceedings under Section 145 of the Code. The Sub-Divisional Magistrate, having satisfied from the report of the Sub-Inspector that a dispute likely to cause breach of the peace existedconcerning the lands in question, passed a preliminary order dated 23-6-1983 as contemplated under sub-Section (1) of Section 145 of the Code and directed the parties to appear before him either in person or by pleader and put in written statements of their respective claims asrespects the fact of actual possession of the subject of dispute. In obedience to the direction issued by the Sub-Divisional Magistrate, both the members of 'A' and 'B' party appeared through their respective Advocates and filed their statements, affidavits and documents in support of their respective claims. Thereupon, the Sub-Divisional Magistrate, after hearing the Advocates for both the parties and also going through their statements, affidavits and other documents, passed the impugned order referred above declaring that the member of 'A' party was in possession of the disputed lands on the relevant date and further directing that 'A' party is entitled to be in possession of the said lands until evicted therefrom in due course of law. It is the correctness of this order that is sought to be assailed in this Revision Petition by the member of 'B' party.
3. Sri S.P. Kulkarni, the learned Advocate for the petitioner, inter alia contended that the impugned order is unsustainable in law since the Sub-Divisional Magistrate has relied on the affidavits filed by the parties along with other material to render his decision which is in effect breach of the provisions contained in sub-section (4) of Section 145 and also violative of Section 274 of the Code. In support of his contention, he relied on a decision of this Court in Ramachandra - v. - State of Karnataka, 1982 (2) KU 459.
4. Sri M. Gopalakrishna Shetty, refuting the contention urged on behalf of the Petitioner, maintained that the order passed by the Sub-Divisional Magistrate is in accordance with law as he had based his finding on a consideration of all the materials produced by both the parties and there was no obligation on his part to insist upon the parties to produce oral evidence. He further argued that all that the Sub Divisional Magistrate required as per law is that if the parties produce any oral evidence, then it is obligatory on his part to follow the procedure laid down in Section 274 of the Code in the matter of recording the deposition of thewitnesses. Finally, he submitted that there is no ground to interfere with the impugned order.
5. Sri S.S. Koti, the learned High Court Government Pleader, argued in support of the impugned order.
6. The short point arises for determination is, whether the impugned order is vitiated on the ground that the Sub-Divisional Magistrate made use of the affidavits filed by the parties in support of making the impugned order.
7. Section 145 of the Code deals with the procedure where dispute concerning land or water is likely to cause breach of peace. Sub-Section (1) of Section 145contemplates that wherever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute, likely to cause a breach of the peace, existsconcerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court inperson or by pleader, on a specified date and time, and to putin written statements of their respective claims as respects the fact of actual possession of the subject matter of dispute.
8. Sub-Section (4) provides the procedure to be followed in holding enquiry after passing the preliminary order under sub-section (1) of Section 145. It lays down that theMagistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, the peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinksnecessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-Section (1) in possession of the subject of dispute. The proviso to sub-section (4) lays down that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (1).
9. Section 274 of the Code provides among others, that in all enquiries under Sections 145 to 148 (both inclusive), the Magistrate shall, as the examination of each witnessproceeds, make a memorandum of the substance of his evidence in the language of the Court. The proviso enables the Magistrate that if he is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open court. Sub - Section (2) provides such memorandum shall be signed by the Magistrate and shall form part of the record.
10. Sub-Section (1) to (4) of Section 145 as they stood prior to the Code have undergone certain changes under the Code and it is necessary to notice them to better appreciate the contentions urged in the case. Sub Section (1) of Section 145 as it stood then provided for passing a preliminary order in writing requiring the parties concerned among other things 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 claims. Sub-Section (4) enjoined upon the Magistrate to peruse the statements, documents and affidavits so produced while making the order as provided under Sub-Section 4.
11. A comparison of sub-section (1) and sub-section (4) of Section 145 as it stood prior to the Code and as they stand under the Code, production of affidavits by way of evidence has been done away with and instead it is provided to receive all such evidence as may be produced by the parties and take such further evidence, if any, as he thinks necessary.
12. Thus, it is clear that the provisions contained in Section 145 as it stands under the Code, do not permit the use of affidavits, as evidence though the same was permitted under the old Code. Therefore, the evidence referred to in sub-section (4) of Section 145 means 'evidence' within the meaning of the Indian Evidence Act. Section 1 of the Evidence Act specifically excludes affidavits from its purview. Evidence is defined in Section 3 of the Evidence Act as follows :
'Evidence' means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) All documents produced for the inspection of the Court ; such documents are called documentary evidence.
13. It is not in dispute in this case that the parties have not examined any witnesses and tendered their oralstatements as evidence. Instead, both the parties have produced affidavits of certain persons by way of evidence and which were made use of by the Sub-Divisional Magistrate in rendering the impugned order. Therefore, in view of exclusion of the affidavits being tendered as evidence under sub-section (4) of Section 145 of the Code, theSub-Divisional Magistrate should not have taken into consideration the affidavits filed by the parties and relied upon them, for the purpose of rendering the impugned orders. This was in clear breach of the provisions contained in sub-section (4) of Section 145. It is a legal flaw in the impugned order. This Court took a similar view in the decision in Ramachandra's case, supra.
14. Besides, I noticed one more legal defect in the impugned order. The power of the Executive Magistrate under sub-section (4) of Section 145 is limited to decide the question whether any and which of the parties was, at the date of the preliminary order passed by him, in possession of thesubject of dispute and in view of the proviso to sub-section(4) if it appears to him that any party had been forcibly andwrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (I), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). In either case, the Executive Magistrate is empowered to decide the question of possession of a party before him in respect of the subject of dispute as on the date of his making the preliminary order under sub-section (1) of Section 145. However, in this case, it is seen from the concluding paragraph of the order that the Sub-Divisional Magistrate has declared that the member of 'A' party was in possession of the disputed lands on 10-10-81 much earlier to the date of the preliminary order which was on 23-6-1983 and also on 23 6-1983. The decision of the Sub-Divisional Magistrate declaring that the member of 'A' party was in possession of the disputed lands on 10-10-1981, was beyond his jurisdiction and the same will not have any legal effect even if his order in other respects is held to be valid.
15. Sri Kulkarni, in the course of his arguments, contended placing reliance on Section 274 of the Code that it was obligatory on the part of the Sub-Divisional Magistrate to record the oral evidence in the enquiries under Section 145 of the Code and since no witness was examined and his evidence was recorded in this case the order passed by the Sub-Divisional Magistrate suffers from one more legal infirmity.
16. As against this, Sri Shetty contended that sub-section (4) of Section 145 which lays down the procedure to be followed by the sub-Divisional Magistrate in holding an enquiry in a proceeding under Section 145 does notcontemplate any obligation on the part of the Magistrate to direct the parties to adduce oral evidence. All that the sub-section provides is that the Magistrate shall peruse the statements put in by the parties, hear the parties and receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary, and,according to him, if any of the parties tender any oral evidence, then the Magistrate should follow the procedure laid down in Section 274 in recording the oral evidence and not otherwise.
17. It seems to me there is much force in the submission made by Sri Shetty on this question. It cannot be said that Section 274 of the Code controls the mode of enquiryprovided under sub-section (4) of Section 145. What all steps the Magistrate has to take in conducting the enquiry and what material he has to consider, is provided under sub-section (4)of Section 145. Section 274 provides the mode of recording the oral evidence if and when oral evidence is tendered in a proceeding under Section 145. However, it cannot be said that Section 274 stipulates that in everyinquiry under Section 145, the parties are invariably required to adduce oral evidence even though they are not inclined to adduce any oral evidence and rest contented with thedocuments and other material produced. If any other interpretation is placed on the language of Section 274 as argued by Sri Kulkarni it means that no order could be made in aproceeding under Section 145 without recording oral evidence. Either the language of sub-section (4) of Section 145 or Section 274 drives us to reach such a conclusion. It seems to me that it is open to a Magistrate to base his order on other material specified in sub-section (4) if the parties do not wish to adduce any oral evidence in the case. However, law does not allow him to make use of affidavits in place of the oral evidence.
18. From the above discussion and the conclusions reached it follows that the impugned order suffers from legalinfirmities and liable to be set aside.
19. In the result, for the reasons stated above, the Revision Petition is allowed. The impugned order is set aside. The matter is remitted to Sub-Divisional Magistrate,Kundapur, for fresh disposal in accordance with law in the light of the observations made in the order.