P. Govinda Menon, J.
1. This revision petition arises out of the final order passed by the Executive First Class Magistrate, Palghat under Sub-section (6) of Section 145 Cr. P. C. On being satisfied that a dispute likely to cause a breach of the peace exists concerning the possession of the property in dispute, the learned Magistrate passed a preliminary order requiring the parties to put in their written, statements of their respective claims as respects the fact of actual possession of the subject-matter of dispute and requiring them to put in such documents and affidavits on which they proposed to rely in respect of their claims. Both parties filed written statements, affidavits and documents and after hearing the counsel for the parties the learned Magistrate passed the impugned order.
2. It is contended by the learned counsel for the petitioners B party that the affidavits filed by them have not been considered, that only documents of title have been referred to in the order, and secondly the Magistrate has confused between 'right to possess' and 'actual physical possession'. On the other hand learned counsel for the respondents -- 'A' party submitted that there is substantial compliance with the provisions of Section 145(4) Cr. P. C., that there was enough material for the learned Magistrate to have come to the conclusion that the A Party is in actual possession and normally there should be no interference with an order passed by the Magistrate under Section 145 Cr. P. C. which prescribes a summary procedure for deciding the factum of actual possession to prevent a breach of peace and that the defeated party has always the remedy by way of a suit in the civil court.
3. Sub-section 4 of Section 145 Cr. P. C. after amendment by Act XXVI of 1955 so far as material provides:
'(4). 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 affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practical, within a period of two months fromthe date of the appearance of the parties before him, and, if possible, decide the question whether any and which of the parties was at the date of the order tie-tore mentioned in such possession of the said subject.'
The affidavits now required to be filed by the parties by the amended Sub-section (4) of Section 145 take the place of oral evidence. The Magistrate, therefore, before deciding the question of possession, has to peruse the statements of the parties as also the documents and the affidavits put in and if the order of the Magistrate does not show that he had considered the affidavits put in by the parties such an order ex facie will be held to be improper as not complying with the mandatory provisions of Section 145(4) of the Code.
In this case as the learned counsel for the petitioner has pointed out, there is not even a reference to the affidavits. It is true, that the Magistrate may, if necessary, consider the evidence of title to enable mm to decide the factum of actual possession, but mere proof of title alone will not be proof of actual possession. When no sufficient evidence of possession is produced by the parties, the Magistrate may use the evidence of title to guide and assist his mind in coming to a decision upon the question of possession. So also in a case where the property in dispute admits of no actual, possession or in case in which evidence as to actual possession is equally balanced the presumption of possession which flows from title can be of help for a correct decision of the question of possession. The Magistrate in his final order must give reasons for his decision sufficiently to enable the revisional court to determine whether he has complied with the terms of Sub-section (4) and directed his mind to the consideration of the evidence adduced before him.
4. Again the final order should declare which party is in possession and should state that he will continue in possession until evicted therefrom in due course of law and should forbid all disturbances of such possession What the learned Magistrate has stated in the impugnad order is to declare that
'No. 2 of the A party to be entitled to the possession of the disputed property until evicted therefrom in due course of law.'
Possession contemplated is the actual possession of the subject-matter in dispute. It means the possession of the person who has his foot on the land, who is ploughing it, sowing and growing crops in it entirely irrespective of whether he had any right or title to possess it.
The learned Magistrate had, therefore, to find as to who is actually in possession on the date of the praliminary order. There is no such finding. There is a proviso to the section which says that a party who has been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order can be treated as if he is in possession. It is in such cases that under Sub-section (6) the learned Magistrate should pass an order declaring such party to be entitled to possession thereof until evicted therefrom in the course of law and may restore to possession the pariy forcibly and wrongfully dispossessed.
5. In this case, the case of the A party has always been that they are in actual possession of the property in dispute and that the B party has no possession.
In such a case the final order should have declared A patty to be in possession. In view of the fact that I am ordering a retrial, it is unnecessary for me to say whether as contended by the A party the documents by themselves do not show that the A Party is in possession. Even so, the learned Magistrate should scrutinise and consider the reliability of the affidavits put in by both sides.
6. The order of the Executive Magistrate is, there-fore, set aside and the petition Is remanded for a fresh hearing and disposal according to law and in the light of the observations made by me. The learned Magistrate is directed to take the case on file and after notice to parties dispose of the case as expeditiously as possible.
The Revision Petition is allowed.
It is now represented by the learned counsel for the A Party that in pursuance of the order of the Executive Magistrate, possession of the property had been handed over to the A party and that he may be allowed to continue in possession subject to the final orders in the case. The request is reasonable. The property will remain with the A Party, but it would be subject to the final orders made by the Executive Magistrate.