Sarjoo Prosad, C.J.
1. This is an application for setting aside an order dated 27-6-1958 passed by the Sub Divisional Magistrate of Bharatnur in a proceeding under Section 145 of the Criminal Procedure Code. The petitioner in this court was first party to the proceeding. The dispute relates to lands comprising an area of 40 1/4 bighas in village Shikasaria Tehsil Bharatpur. It is not disputed that the opposite party Ghure was a tenant in cultivation of the lands upto 5-6-1955; but it is claimed by the petitioner that the landlords on that date executed a Patta in favour of the petitioner and opposite party No. 2 for cultivation of the lands on payment of rent and that on the said date these lessees were put in possession thereof.
2. The proceeding in question was started on a petition filed by the petitioner on 18-12-1957 wherein it was alleged that the opposite party Ghure threatened to dispossess the petitioner from the disputed lands by force of arms and therefore a proceeding under Section 145 of the Cr. P. C. was necessary. Accordingly, on 18-12-1957, the proceeding was drawn up by the Sub-divisional Magistrate, Bharatpur and the lands were directed to be attached. The parties then filed their written statements and affidavits in support of their respective claim to possession.
The case of the opposite party Ghure was that he never lost possession of the disputed lands. which he had continued to cultivate all along and the claim of the petitioner that in June 1955 he had obtained possession was false and incorrect. The Sub-divisional Magistrate apart from the evidence which had been given by the parties examined as a court-witness the Patwari Nemichand and then after a consideration of the materials on re-cord, passed the order which is now challenged before me declaring that the opposite party was in possession on the date of the proceeding and within two months thereof, He accordingly directed that he should be restored to possession until evicted therefrom in due course of law. The Additional District Magistrate rejected the revision petition against the order in limine.
3. On behalf of the petitioner, it is urged that the Magistrate had no jurisdiction to examine the Patwari as a court-witness and the order passed, is, therefore without jurisdiction. Reliance is placed upon the proviso to Sub-section (4) of Section 145 of the Criminal Procedure Code. The proviso says that 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. It Ss contended that there being no affidavit of the Patwari Nemichand filed on behalf of any of the parties, the Magistrate had no jurisdiction to examine him in the enquiry. The argument is clearly misconceived.
The proviso is merely an enabling provision of law which entitles the Magistrate to summon and examine any of the persons whose affidavits have been filed on behalf of the parties if he so desires in order to decide the question of possession but the proviso does not preclude the Magistrate from calling as a witness any other person that he thinks proper to examine. Sub-section (9) of Section 145 contemplates such a situation. Sub-section (9) says that the Magistrate, if he thinks fit, at any stage of the proceedings under the section, on the application of either party, issue summons to any witness direction him to attend or to produce any document or thing.
If on the application of either party to the proceeding the Magistrate can do so, he can do so equally in the ends of justice of his own accord. Indeed Section 540 of the Code empowers the Magistrate like any court, a' any state of any enquiry, trial or other proceeding under the Code, to summon any person as a witness, or examine any per-son in attendance, though not summoned as a wit-ness, or recall and re-examine any person already examined; if his evidence appears to be essential to the just decision of the case. In view of these provisions, it is obvious that the contention is unrounded. It would be indeed surprising if the proviso to Sub-section (4) of Section 145 of the Criminal Procedure Code was capable of bearing the interpretation which is sought to be placed upon it by the learned counsel. In that case it would be difficult for the Magistrate to satisfy the needs of justice even if he thinks that the evidence of a particular witness is necessary in order to decide the matter of possession.
4. The second contention of the learned counsel is that the Magistrate has not applied his mind to the evidence on record and that he misdirected himself as to the evidence of the Patwari. A perusal of the judgment of the learned Magistrate makes it quite clear that his finding is based on a cogent consideration of the materials placed before him. He points out that no reason has been assigned as to why on 5-6-1955 as alleged by the petitioner, Ghure who was in actual possession of the disputed lands would be willing to give up possession. On his part, Ghure has claimed that he was all along in possession and his case is supported by the affidavits of persons who hold lands in the neighbourhood of the disputed lands. Unless it was shown that possession had been voluntarily given up on the 5th of June 1955 or that Ghure had been actually ousted from possession on that date as the learned Magistrate observes, it would normally be presumed that Ghure continued to be in possession of the disputed lands. Then again even after 5-6-1955 it is found that the Girdawari stands in the name of Ghure. This must have been on the basis of actual possession. It is true that the latest Girdawari was being disputed, but that would not make any difference and the Magistrate was right in deciding about the question of possession on the materials placed before him. The Patwari has merely stated that the landlords admitted that they had leased out the disputed lands to the petitioner and that it was his Kasht; but that did not mean that the Patwari accepted the position or deposed to the effect that the petitioner was in possession. In my opinion, the learned Magistrate has correctly applied his. mind to the evidence on record and no exception can be taken to the order passed by him.
5. Thirdly, it is contended by the learnedcounsel that there is no finding that any apprehension of a breach of the peace persisted.Indeed it was the petitioner who had filed theapplication for initiation of the proceeding under Section 145 of the Criminal Procedure Code in whichhe himself alleged that there was apprehension ofa breach of the peace and on the basis of thatthe Magistrate had taken action attaching the landin question. Now that he has decided the matter,the person from whom possession had been obtained before the attachment of the lands had to berestored to possession. There is therefore no substance in this application which accordingly failsand is rejected.