G.K. Misra, J.
1. The petitioners are members of the first party in a proceeding under Section 145, Cr. P. C. The dispute is over the possession of a tank with an area 2.77 acres. It stands on plots Nos. 317, 318, 390, 391, 374 and 375 appertaining to khata No. 19 in village Chutiaposi in the district of Keonjhar. Admittedly these plots stand recorded in the name of the Government The case of the first party is that their fore-fathers excavated the tank at their own expenses and that they are in possession of cultivable lands surrounding it which arc irrigable by its waters. They claim fishery right in it. In their written statement they allege that sometime in 1942, the ex-Stale of Keonjhar recognised their rights in it Without any semblance of right the second party members wanted to create disturbance in their possession and accordingly the present proceeding has been started
2. The second party members are mostly villagers of Chutiaposi. They allege that the disputed tank belongs to the State and that the Slate had transferred the same to the Kapundi Gram Punchayat (hereinafter referred to as the Punchayat). From 1961 onwards the fishery right of the tank is being put to auction sale by the Punchayat and the money so realised is deposited in the Punchayat Fund. From 1964 the Punchayat is doing pisciculture in the tank. Before its transfer by the State to the Punchayat, the villagers were looking after it and were repairing its embankments Cattle of the villagers were being washed in it and they were exercising fishery right in it In para 8 of their written statement, they state that the members of the first party, in order to enforce their rights, posted signboard in April 1964 prohibiting other persons from taking their hath or using the tank in any manner. The signboard was taken away after an enquiry by the Tahsildar. In the current year, the Punchayat has put in fish fries in the tank. They deny that the members of the first party had any right in the lank.
3. The preliminary order in this case was passed on 22-8-1904. On the same day the tank itself was attached. The learned Magistrate also made the following direction :
'Under Section 145 (3), Cr. P. C., I further order that the service of copies of this order on the parties will be sufficient for the purpose of this order. I further order that one copy of this order shall be fixed to some conspicuous place near the lands in dispute.'
On 29-1-65 the Secretary of the Punchayat appeared in court and filed some documents in connection with the disputed tank and auction sale of fishery for reference of the Court, in accordance with the Magistrate's direction on 9-1-1965. The Punchayat did not make an application to become a party to the proceeding under Section 145, Cr. P. C. nor the learned Magistrate so directed. The result, therefore, is that though the second party members claimed no present right of possession in themselves but contested the matter on the basis that all rights in the tank vested in the Punchayat, neither the Punchayat nor the State of Orissa became a party to the proceedings under Section 145, Cr. P. C. It has been held by this Court in second appeal No. 162 of 1963 : (AIR 1966 Orissa 49) Mst. Alarakhi Bibi v. Mst. Ujala Bibi that an order under Section 145 Cr. P. C. is binding not only on actual parties to the proceeding but also on all persons interested in the possession of the land in dispute on notice of the proceeding, even though they were not parties. The result of this proceeding under Section 145, Cr. P. C would ultimately be binding on the Punchayat not only because there was service of notice on the spot, as was directed by the learned Magistrate under Section 145 (3) Cr. P. C., but also because of the direction given by the learned Magistrate calling upon the Secretary of the Punchayat to file relevant documents. The proceeding under Section 145, Cr. P. C., in this case stands almost on ex parte footing The second party members do not claim any independent right with regard to the factum of possession on the date of preliminary order In their written statemenl, thev refer to their possession before 1961 when the tank had not been transferred by the State to the Punchayat. The Punchayat has not chosen to be a party, nor has adduced any evidence in support of the contention of the second party that it is exercising right of fishery.
It has been held by this Court in ILR (1966) Cut 89, Kusei Swain v. Madan Mohan Mohanti that private documents could be mark ed only on proof of execution unless otherwise admitted When the documents have not been marked as exhibits, they cannot be used as legal evidence. The learned Magistrate committed a serious illegality in placing reliance on the documents produced by the Secretary of the Punchayat. Most of these documents, if not all, are private documents requiring proof of execution. Witnesses should have deposed to the truth of the contents of those documents and should have submitted themselves to cross-examination by the petitioners. Without following this legal procedure, the learned Magistrate took the documents, produced by the Secretary of the Punchayat, into consideration and utilised them in his conclusions against the members of the first party. Law does not countenance such a procedure. All those documents are excluded from consideration as being inadmissible in evidence.
4. Members of the first party filed four affidavits. Two of the affidavit witnesses were examined by them, Members of the second party examined Nilamani Sahu, who has not filed any affidavit. The learned Magistrate excluded the evidence of Nilamani Sahu as he had filed no affidavit. There is some controversy as to whether the evidence of a witness, who has not filed any affidavit, should be excluded from consideration. This Court has consistently taken the view, on the basis of Section 145 (4), First Proviso, Cr. P. C., that the evidence of a witness is inadmissible unless his affidavit has previously been put in. A contrary view has been taken in some cases see AIR 1964 Mad 263 1 am bound by the decision of this Court see AIR 1958 Orissa 79 and (1959) 25 Cut LT 86, which has also been accepted as laying down good law in AIR 1959 All 763 and AIR 1961 Punj 187. It is unnecessary to discuss in this case whether in exercise of its powers under Section 540. Cr. P. C. a Magistrate has got power to examine any witness even though he has not put in any affidavit. The question does not arise in this case as Nilamani Sahu has been examined as a witness for the 2nd party and not under Section 540, Cr. P. C. by the Magistrate. The learned Magistrate rightly ignored the evidence of Nilamani Sahu.
5. If the evidence of Nilamani Sahu and the documents filed by the Secretary of the Punchayat, are ignored, there is no other evidence on behalf of the second party The evidence on behalf of the first party consists in 4 affidavits of the party and witnesses having lands in vicinity fully supporting their case as to how they have been exercising right of irrigation and fishery ever since the lime of their fore-fathers The learned Magistrate again committed an illegality in merely referring to the affidavit evidence without fully discussing the same. In 31 Cut LT 251: (AIR 1965 Orissa 208) Murali v. Purusottam this court held that after amendment, the affidavit has substituted oral evidence except in cases where the Magistrate may summon and examine a person, whose affidavit has been put in to test the correctness of the facts mentioned therein Where the affidavits substitute evidence, it is the bounden duly of the Magistrate to examine carefully the affidavits of each deponent. He must give clear reasons for accepting or rejecting the affidavits as is done in weighing oral evidence. The order of the Magistrate must indicate that he had applied his mind to the affidavits. No hard and fast rule can be laid down as to how the affidavits are to be assessed. But all that is to be emphasised is that the affidavits cannot be dealt in perfunctory manner by general observations. They should he weighed as oral evidence was being done prior to the amendment.
The learned Magistrate has not followed the law laid down by this Court. He has not discussed the affidavit evidence given by the first party. He has not at all referred to two of the affidavits. On going through the affidavits I am satisfied that they fully support the case of the first party. In all the affidavits it is clearly stated that the first party members have about 60 acres of land surrounding the lank from which the lands are irrigated The affidavits also state that the first party members maintain the tank and exercise their right of fishery in it.
A reference has been made in the judgment to an application dated 11-8-1959 filed by Balaram Behera, son of Raghunath Behera, one of the members of the first party. The learned Magistrate has construed this application as an admission that the Punchayat has rights over the tank. Though in the judgment, the application is referred to as Ex. 1, the document does not show that it has been marked as an exhibit and that the order-sheet does not show that it was marked so The genuineness and the execution of this document have not been proved. Even assuming that it has been duly proved, there is nothing in the document showing that Balaram Behera admitted the rights of the Panchayat or of the members of the 2ml party in the disputed tank. The application merely raised a protest and stated that nothing should be done to affect the right of the petitioners. It rather emphasised the case of the first party that all through they were assertive of their own possession.
6. To sum up, the position emerges thus. The second party members asserted that the possession of the tank vested in the Punchayat to whom it was transferred by the State sometime in 1960-61. Despite service of notice on the spot and the fact actually coming to the knowledge of the Secretary of the Panchayat, the Panchayat did not choose to contest and assert its rights that it was in possession of the lank on the date of the preliminary order. There is no admissible evidence given on behalf of the members of the second party to show that they were in possession on the date of the preliminary order. Four affidavits were filed by the first party and two of the affidavit witnesses were examined, who unequivocally asserted that the members of the 1st party exercised right of possession over the tank. The evidence is practically one-sided. Conclusion is irresistible that the members of the first party were in possession of the disputed tank on the date when the preliminary order was passed.
7. The contention of the first party that though the tank stands on lands recorded in the name of the State, they exercised rights of possession by spending money over excavation and maintenance, is not wholly frivolous. Such a system was prevalent in most of the ex-Stale areas. Reference to para 33 of the Report on Land Tenure and the Revenue System of the Orissa and Chhattisgarh States by Ramadhyani, Vol. 1 would show the existence of this system. The last line of that para is to the effect :
' Tanks constructed by villagers seem to have been recorded as State tanks in some places.'
8. The final order passed by the Magistrate is to the following effect :
'I, therefore, hold the Kapundi G. P. through its Secretary (second party) to have been in possession of the disputed tank and I hereby order that Status quo he maintained The Kapundi G. P. through its Secretary shall not be disturbed in such possession until evicted in due course of law.'
It would thus appear from the final order that the learned Magistrate clearly held that the Punchayat was in possession of the disputed tank on the date of the preliminary order and not the members of the Ist party and second party The Second party members have not come up in revision to challenge this adverse order against them. They are concluded by the order of the Magistrate that they were not in possession of the disputed tank on the date of the preliminary order.
The Panchayat is not a party to the proceeding under Section 145, Cr. P. C., though its Secretary happens to be one of the members of the second party as being one of the villagers The Panchayat not being a party to the said proceeding, it was illegal on the part of the learned Magistrate to declare possession in its favour.
9. The judgment of the learned Magistrate suffers from various legal infirmities. He has placed reliance on inadmissible evidence in support of the case of the second party and has excluded from consideration admissible evidence on behalf of the first party. For reasons, already discussed. I am satisfied that the members of the first party were in possession of the disputed tank on the date of the preliminary order. They are declared to be entitled to possession of the disputed tank until evicted therefrom in due course of law Members of the Second party are forbidden from making any disturbance in the possession of the Ist party until such eviction.
10. In the result, the order of the learned Magistrate dated 27-4-1965 is quashed andthe revision is allowed.