G.K. Misra, J.
1. First party is the petitioner. Opposite Party No. 1 is the husband of Opposite Party No. 2. The case of the petitioner is that he purchased the disputed land from Purusottam Bhati by a registered sale deed on 9-6-1901 and got delivery of possession. Ever since then he was in possession. As the opposite parties created disturbance in his possession, he filed an application before the Magistrate asking for an order under Section 144, Cr. P. C. against the opposite parties. On 8-8-1963 an order under Section 144 was passed restraining the opposite parties from interference with the possession of the petitioner. On 12-11-1963 the learned Magistrate heard arguments of the advocate for both parties and passed the following order.
As this relates to a land dispute and the parties are disputing over possession on the same land for the last two years it is desirable that a finding can be given in case this is converted into a proceeding under Section 145, Cr. P. C. The lands be kept under attachment and receiver be appointed.
Parties to file written statements, affidavits etc. in support of their respective claims to possession by 29-11-1983.
Subsequently the parties filed their written statements, affidavits and documents. The learned Magistrate ultimately passed the following order :
I therefore find that the members of the 2nd party were in actual possession of the land throughout and at the data of order and therefore order that She land be restored to the 2nd party, if 1st party is aggrieved, he should take recourse in a competent Court of law to establish his right. The property attached should be delivered to the 1st party.
In the last sentence the learned Magistrate inadvertently used '1st' for '2nd'. The revision is directed against this order dated 27-5-1964.
2. Mr. Rath raised three contentions :--
(i) The order under Section 144, Cr. P. C. passed on 8-8-1963 expired after sixty days on 8-10-1983. By the date the Magistrate converted the proceeding under Section 144, Cr. P. C. to one under Section 145, Cr. P. C., there were no further materials before him to come to a conclusion that there was apprehension of breach of the peace and as such, the proceeding under Section 145, Cr. P. C., is without jurisdiction and is liable to be quashed.
(ii) The affidavits filed by the parties have not at fill been discussed and the learned Magistrate committed error of record in saying that the affidavits of She 1st party did not refer to actual cultivation of the land.
(iii) Though the 1st party filed the sale deed on 20-6-64, it was not put up before the Magistrate for his consideration in the judgment, and, as such, the judgment is vitiated for non-consideration thereof.
3. Section 145 (1) lays down :
Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his 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 in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of 'their respective claims as respects the facts of actual possession of the subject of dispute and further requiring them to nut in such documents or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.
It is well settled that a dispute concerning any land or water or boundaries thereof comes within the jurisdiction of the Civil Court which alone is competent to decide such matters. But if such a dispute is likely to cause a breach of the peace, then a Magistrate gets jurisdiction under Section 145 (1) Cr. P. C. The Statute lays down that the Magistrate must, however be satisfied from police report or other information that a dispute likely to cause a breach of the peace. exists. The existence of the dispute likely to cause a breach of the peace is therefore a preliminary prerequisite to the jurisdiction of the Magistrate. The second essential ingredient is that the Magistrate shall make an order in writing stating the grounds of his being so satisfied.
In the order dated 12-11-1963, already quoted, the Magistrate does not at all make any reference to the element that a particular dispute was likely to cause a breach of the peace and necessarily he does not state the grounds of his satisfaction about the existence of such dispute. Due to the absence of the aforesaid two elements, Mr. Rath contends that the entire proceeding is without jurisdiction. Reliance has been placed on Dirgopal Singh v. Rambrich Singh, A I R 1951 Pat 412, Kshetromoni v. Raghunath Patnaik, AIR 1953 Orissa 255 and Pakamaraja Naicker v. Chidambara Nadar, (S) A I R 1955 Mad 229. All these cases are clearly distinguishable. In AIR 1951 Pat 412 the Magistrate nowhere recorded that he was satisfied of the existence of a dispute likely to occasion breach of the peace. He did not state so in the notice issued to the parties nor recorded this in the order sheet and his final order made no mention of the existence of a dispute likely to occasion breach of the peace. His Lordship quashed the proceeding as there was no indication in that case that either of the parties raised this question before the Magistrate, or at any stage of the proceeding the Magistrate applied his mind to this question.
In AIR 1953 Orissa 255, Mohapatra, J. merely dealt with a case where police report forming the basis of the Magistrate's order was more than 13 months before the order was passed.' (S) AIR 1955 Mad 229 related to a case where no preliminary order was at all passed under Section 145 (1), Cr. P. C. His Lordship noticed the conflict of the authority and preferred to follow some decisions of that Court as the Magistrate had to determine who was in possession on a particular date and that there was no date in that case when the order under Section 145 (1) was passed. None of these decisions dealt with a case where otherwise from the materials on record it would appear that the Magistrate was satisfied regarding the existence of a 'likelihood of a breach of the peace on the date of the preliminary order, but yet had not clearly so recorded in his order or not stated the reasons in writing.
4. The true principle which would govern the present case was laid down in Kapoor Chand v. Suraj Prasad, AIR 193S All 264 (FB). Their Lordships observed :
'In these circumstances although we are of opinion that the Magistrate did not follow the letter of the law, we have every reason to believe that ha was satisfied in his mind, on a perusal of the police report and the sworn statement of the applicant, that there was a likelihood of a breach of the peace. Further, it appears that the opposite parties, on receipt of the notice, did raise the question as to the likelihood of a breach of the peace. The learned Magistrate expressly applied his mind to the point, and on the evidence before him, came to the conclusion that there was a likelihood of a breach of the peace.' .
In Wazir Mahton v. Badri Mahton, AIR 1950 Pat 372, the learned Single Judge, after a full review of all the relevant authorities, held that mere failure to state the reasons why the Magistrate was satisfied that there was an apprehension of a breach of the peace, was nothing more than an irregularity not sufficient to render subsequent proceeding void. This does not, however, give a carte-blanche to the Magistrate not to record the preliminary order in unambiguous terms, and not to record the reasons in writing. This decision has my respectful concurrence. Even in AIR 1953 Orissa 255, Mr. Justice Mohapatra accepted Patna decision as laying down the taw correctly though it was distinguished on facts (see para 6). In Dass Mohanto v. Prahlad Mohanto, 25 Cut L T 39, Narasimhara C. J. also followed the decision and held that no hard and fast rule could be laid down and such case must be governed by its own facts and circumstances. In the Patna case as also in this case, he parties filed written statements, gave evidence and their lawyers argued the case before the Magistrate. But no objection was ever raised as to the non-existence of the apprehension of a breach of the peace.
5. The position may, therefore, be thus summarised. It is the duty of the Magistrate to record in writing in clear and unambiguous terms that a dispute likely to cause breach of the peace exists and the grounds of his being so satisfied. If, however, due to inadvertence that Magistrate does not state the grounds of his satisfaction, the proceeding cannot be quashed as being without jurisdiction, if it otherwise appears from the record that there were materials for his satisfaction when the order under Section 145 (1), Cr. P. C. was passed. No hard and fast rule can be laid down. Each case must, however, be governed by its own facts.
6. It is, therefore, necessary to examine in this case whether the Magistrate had materials for his being satisfied that there was a dispute likely to cause a breach of the peace. The genesis of the dispute between the parties starling with the execution of a sale-deed by opposite party No. 1 in favour of the petitioner despite his execution of an unregistered stamp paper on 13-10-58 delivering possession of the disputed land to opposite party No. 2 speaks for itself. Even two proceedings under Section 144, Cr. P. C. preceded the preliminary order. Before the order was passed on 12-11-63, both parties had appeared in the case through their lawyers. Arguments of the lawyers were heard and the proceeding under Section 144, Cr. P. C. was converted to one under Section 145, Cr. P. C. None of the lawyers took any objection that there was no apprehension of a breach of the peace. On that very day orders were passed to keep the land under attachment and to appoint a receiver. The parties were directed to file their written statements, affidavits etc. in support of their respective claims to possession by 29-11-63 in terms of Section 145 (1), Cr. P. C. In the preliminary order issued by the Magistrates on 26-11-63, following his own order dated 12-11-63, it was stated as follows :
'Whereas it has been made to appear to me that a dispute likely to induce a breach of peace exists between Murali Patel v. Purusottam Bhati (2) Purnami Bhatiani of Bishunmunda P.S. Bolangir concerning plot Nos. 763, 773, 774, 775, 787, 788 and 789 measuring an area of 5.36 acres out of holding No. 34 o Bishunnmunda situated within the limits of my jurisdiction and the said parties thereof are called upon to state in writing their respective claims as to the fact of actual possession of the aforesaid disputed lands.'
This was given under the hand and seal of the Magistrate on 12-11-63 and was signed on 26-11-63. On a perusal of this document there can be hardly any controversy that the Magistrate was satisfied that there was apprehension of a breach of the peace. In the written statements filed by the parties subsequently, the petitioner stated that there was apprehension of a breach of the peace. In the facts and circumstances of the case the conclusion is irresistible that the Magistrate passed the preliminary order under Section 145 (1) on 12-11-63 being satisfied that a dispute likely to cause a breach of the peace existed concerning the disputed lands. On the legal position enunciated by me, Mr. Bath's first contention must be rejected in the facts and circumstances of this case.
7. The second contention is that not only the affidavits filed on behalf of the petitioner were not thoroughly discussed, but error of record was committed by stating that the affidavits did not refer to actual possession of the disputed lands by the petitioner on the date of the preliminary order. On looking to some of the affidavits of the first party, the statement of Mr. Rath appears to be factually correct. Though initially Mr. Ram disputed the statement of facts, ultimately he had to accede to the factual correctness of the contention. Section 145 (1) prescribes the method of enquiry as to possession to the effect that the Magistrate shall, without reference to the merits or claim of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties, conclude the inquiry as far as may be practicable, within a period of two months from the date of the appearance of the parties before him, and, if possible, decide the question whether and which of the parties was at the date of the order before mentioned in such possession of the said subject. The Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein. After the amendment, affidavits have substituted oral evidence excepting in cases where the Magistrate may summon and examine any person whose affidavit has been put in to test the correctness of the facts mentioned therein. When affidavits substitute evidence, it is the bounden duty of the Magistrate to examine carefully the affidavits of each deponent. He must give clear reasons for accepting or rejecting the affidavit 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 a perfunctory manner by general observations. The salutary principle is that they should be weighed as oral evidence was being done prior to the amendment. It is unnecessary to cite a large many authorities on this point. There can be no controversy in the matter. See Mt. Sarfi v. Mt. Sugo, AIR 1962 Pat 253.
On the accepted position of the parties that the affidavits were not fully discussed and errors of record were also committed as to the contents of the affidavits, the final order passed by the learned Magistrate must be quashed for reassessment of the entire evidence after taking them into consideration. It appears from the order sheet of the Magistrate dated 30-5-1964 that the petitioner filed certain documents prior to the delivery of judgment which were accepted by the Court, It is unnecessary to go into details of this matter as the case is being otherwise remanded. The documents so filed and not discussed in the judgment may be taken into consideration so far as they are relevant. This disposes of the third contention.
8. In the result, the order of the learned Magistrate is set aside and the case is remanded for disposal by some other competent Magistrate at the station to be selected by the S. D. M., Bolangir on the materials on record in accordance with law and the directions given above. Parties would be given full opportunities for arguments. The Magistrate, whoever he might be, is directed to dispose of the case within 2 months from today. The lower court records be sent back at once. The revision is accordingly allowed.