A. Misra, J.
1. The 2nd party members in a proceeding under Section 145, Criminal P. C. are the petitioners herein. According to the 1st party, the land in dispute measuring 1.85 acres appertaining to plot No. 259 has been in his possession since 40 years or so. On 25-10-66, the 1st party reported at the P. S. that the 2nd party members forcibly reaped the crop grown by him. After enquiry, police submitted a report, on the basis of which, the preliminary order was passed under Section 145, Criminal P. C., on 23-11-66, The 2nd party members, on the other hand, allege that 1.20 acres out of the disputed land appertains to their plot No. 258 and 0.4 acre appertains to plot No. 252. The disputed land consists of 11 kitas which have been divided among them and each is in possession of a portion. They assert that the 1st party was never in possession of the subject-matter of dispute.
2. In support of their respective claims of possession of the disputed land, each of the parties filed four affidavits. During the course of enquiry, an amin was deputed who after local investigation reported that the subject-matter of dispute partly appertains to plot No. 252/1 and partly to plot No. 258/1. The learned Magistrate, however, confined his consideration to the determination of actual physical possession of the disputed land and relying on the affidavits filed on behalf of 1st party and the report of the police, declared the 1st party to be in possession and prohibited the 2nd party from entering upon the land until eviction in due process of law.
3. The order of the learned Magistrate is assailed by learned Counsellor the petitioners mainly on the following three grounds : (1) There has been no proper appreciation of the evidence furnished by the affidavits; (2) the learned Magistrate has erred in taking into consideration facts stated in the police report in deter, mining the question of possession and (3) the order of the learned Magistrate is illegal, as there is no finding as to which of the parties was in possession of the disputed land on the date of the preliminary order,
4. Learned Counsel for petitioners points out that the 1st party does not claim to be in possession of any land appertaining to plot No. 258 or 252. So also, the 2nd party members do not claim possession of any land appertaining to plot No. 259. During the course of enquiry, the learned Magistrate deputed an amin who after local investigation, found and reported that the subject-matter of dispute appertains to plot Nos. 252 and 258. It is argued that in the face of this report, the learned Magistrate has committed an error in finding possession of the disputed property with the 1st party who himself does not claim any land appertaining to plot Nos. 252 and 258. As has been rightly observed by the learned Magistrate, the question whether the subject-matter of dispute appertains to 1st party's plot No. 259 or 2nd party's plot Nos. 252 and 258 is not a matter for determination in a proceeding under Section 145, Criminal P. C. The jurisdiction of the Magistrate in such a proceeding is confined to determination of the question of actual physical possession of the subject-matter of dispute on the date of the preliminary order irrespective of the rights of any of the parties to claim possession thereof. Therefore, the learned Magistrate has correctly approached the question in observing that the only fact to be decided in the proceeding is the fact of actual physical possession of the disputed land.
5. The first contention of learned Counsel for petitioners is that the learned Magistrate has not properly appreciated the evidence furnished by the affidavits of respective parties. Each of the parties filed four affidavits in support of its claim of possession. The affidavits filed on behalf of the 1st party include those of the boundary witnesses like Mathu Munda and Budhu Munda. The learned Magistrate has considered the affidavits filed on behalf of both parties, but preferred those supporting the 1st party's possession primarily on the ground that deponents are adjacent owners ; and as such, competent to speak about actual possession. It is entirely within the jurisdiction of the learned Magistrate to accept or reject the affidavits filed by either party ; provided in doing so, he applies his mind to the statements of the deponents and gives reasons why he prefers one set of affidavits to the other. In this case, the learned Magistrate has not failed to apply his mind or give reasons for his preferring the affidavits filed on behalf of the 1st party to those filed on behalf of the 2nd party. Hence, this contention, in my opinion, has no merit.
6. The next contention urged on behalf of petitioners is that the learned Magistrate has utilised and relied upon the facts stated in the police report in determining the question of actual possession which he is not competent to do. There is considerable force in this contention. While considering the evidence regarding possession, the learned Magistrate has observed:
The next point is to be seen, from whom the disputed land has been attached, consequent upon issue of the preliminary order under Section 145, Criminal P. C. In this respect, the report of the police has to be examined. In their report, it has been said that the 1st party member was in peaceful possession of the said land for about 30-40 years. He has spoken about the cultivation of the disputed land by the 1st party member and also forcibly cultivated and sowed by the 2nd party members.
It is well settled that under Section 145, Criminal P. C., the Magistrate is entitled to peruse the police report for the limited purpose of satisfying himself as to the likelihood of breach of the peace and as to the identity of the subject-matter and of the contending parties. It is inadmissible as evidence in the enquiry relating to possession of the parties. Thus, the learned Magistrate has committed an illegality in utilising the facts stated in the police report in the enquiry regarding possession of the subject-matter of dispute and relying on it, while determining the same.
7. The third contention advanced on behalf of petitioners is equally substantial. In a proceeding under Section 145, Criminal P. C., it is not disputed that the Magistrate is required, without reference to the merits of the claim of any of the parties, to decide the question whether any and which of the parties was on the date of the preliminary order in actual physical possession of it. The only exception is that if any of the parties had been forcibly and wrongfully dispossessed within two months preceding the date of the preliminary order, he will be treated as if he was in possession on the date of the preliminary order. In the present case, the learned Magistrate has not considered the evidence or come to a finding as to which of the parties was in actual physical possession of the disputed property on the date of the preliminary order or if there was forcible and wrongful dispossession within two months preceding the date of the said order. Without such a finding, the order of the learned Magistrate declaring possession of the 1st party is not legal. Thus, the learned Magistrate has committed two illegalities, as pointed out above, in deciding the question of possession. As such, the order cannot be maintained.
8. Hence, I allow the revision, set aside the order of the learned Magistrate and direct that the case be remanded for disposal in accordance with law, Both parties should be given an opportunity to argue the matter on the materials already on record and the case disposed of within. a period of two months from the date of receipt of the records. The lower Court records be sent back immediately.