Kalyan Dutta Sharma, C.J.
1. This is an application in revision filed by Atma Ram and his son Mukut Chand against the order of the Additional Sessions Judge, Baran, dt. May 1, 1975, by which the order passed by the Sub-Divisional Magistrate, Baran, on April 25, 1972, in a proceeding Under Section 145, Cr.P.C. was upheld It will not be out of place to mention that the Sub-Divisional Magistrate, Baran, held an enquiry into the respective claims of the parties as respects the fact of actual possession of the land in dispute and came to a conclusion upon evidence led by the parties that the disputed land was in possession of the non-petitioners at the date of the preliminary order and within two months next before that date He, accordingly, declared the non- petitioners to be entitled to possession of the land in question until evicted therefrom in due course of law and directed the receiver to hand over the possession of the land to them along with the mesne profits, if any, after deducting the commission/fees of the receiver and the expenses incurred by him in managing the land.
2. As against this order of the Sub-Divisional Magistrate, the petitioners moved the Additional Sessions Judge, Baran, in revision. The Additional Sessions Judge found no fault with the order of the Sub-Divisional Magistrate and dismissed the revision petition. The petitioners, therefore, have come up to this Court to challenge the orders passed by both the courts below on the following grounds:
(1) the affidavits filed by the parties and their witnesses in support of their respective claims as respects the actual possession of the land in dispute at the relevant date were not properly sworn by them and, consequently, the Sub-Divisional Magistrate committed an error in acting on those defective affidavits ;
(2) the Sub-Divisional Magistrate went wrong in holding that in the present case there was a dispute concerning the land in question between the master and servants and the provisions of Section 145, Cr. P.C cannot, therefore, be invoked ;
(3) the learned Additional Sessions Judge in his judgment committed an error in holding that the petitioners could be presumed to have been out of possession because admittedly Atma Ram had ceased to be a Pujari of the temple on Jan 29, 1970 ;
(4) the learned Sub-Divisional Magistrate wrongly took into consideration the fact of pendency of a litigation between the parties in revenue Courts with regard to the land in question and in arriving at the decision as respects the actual possession of the disputed land.
3. Mr. R.N. Surolia, appearing on behalf of the non- petitioners, frankly submitted before me that the affidavits put in by the parties and their witnesses are not properly sworn by them I also have critically examined the affidavits put in by Atma Ram, petitioner, and his witnesses, namely, Mukut Chand, Deep Chand, Bhawani Shanker, Kesra, Madho Lal, Mool Chand Mali Mool Chand Brahmin, Onkar, Shivnath and Jugal Kishore. Likewise, I perused the affidavits put in by the non-petitioners and their witnesses, namely, Mool Chand, Mangilal, Kanhaiya Lal, Kashira, Ram Narain, Kishan, Chittar Lal Mangi Lal, Panna Lal, Ratan Lal, Narain and Dhanna Lal All these affidavits filed by the parties and their witnesses were not properly attested and verified The affidavits put in by Atma Ram, Mukut Chand, petitioners, and their witnesses, namely. Deep Chand Bhawani Shanker and Kesra Ram on Aug 31, 1970 do not even contain any verification by the deponents. The other affidavits brought on the record were not properly attested inasmuch as it cannot be gathered from the affidavits whether a. person authorised to administer the oath either by himself or by an official empowered by him in this behalf had attested them. There is no endorsement by the attesting authority that oaths were administered by him. The mere endorsement i.e. 'Attested,' made on each affidavit and initialled by the officer attesting them is not a valid attestation, because it does not show that the contents of the affidavits were read over to the deponent and that the deponent admitted them to be correct before the attesting officer. The amendment made in Section 145, Cr.P.C in the year 1956 enabled the Magistrates to decide the question of possession on the basis of affidavits put in by the parties and their witnesses instead of recording their evidence in every case and if the affidavits were not properly verified and attested they could not be safely used in evidence as the decision of the learned Sub-Divisional Magistrate by and large was based on the evidence before him in the form of affidavits, which were not properly verified and attested, I am unable to uphold it Of course, I am of the view that a proper opportunity to the parties should be afforded to make good the defect in their affidavits and in the affidavits of their witnesses. In my opinion, it would be improper and unjust to throw away this case merely because there has been formal defect in the form of attestation and verification of the affidavits.
4. As for the second ground raised by the learned Counsel for the petitioners, suffice it would be to observe that the word 'possession' used in Section 145, Cr.P.C means actual physical possession and it is the duty of the Magistrate to make an enquiry into the actual physical possession over the land in dispute at the date of the preliminary order or within two months next before it, as the case may be, and to arrive at a decision upon evidence as to which party is in actual possession of the subject of dispute at the relevant time. The Magistrate is required to perform this duty in order to prevent breach of the peace and to maintain the possession of the person, who is found, upon enquiry, in actual possession of the disputed property at the relevant date or time. Even if a dispute concerning land is between a master and a servant the provisions of Section 145, Cr.P.C can be invoked and there is no legal bar for initiation of proceedings Under Section 145, Cr.P.C. against the master or the servant. Reference in this connection may be made to an authority of this Court reported as Jaikrit Singh v. Sohan Raj .
5. As regards the third ground, I may say that the Sessions Judge committed an error in drawing such a presumption from the mere fact that Atma Ram petitioner had ceased to perform the functions of the Pujari of the temple. The learned Sub Divisional Magistrate ought to have decided upon materials available on the record as to which party had been in actual possession of the land in dispute at the date of the preliminary order or within two months immediately before preceding it.
6. As regards the fourth ground, 1 may observe that the pendency of a litigation in a civil or a revenue Court between the same parties with regard to the same land cannot take away the jurisdiction of the Magistrate to initiate proceedings Under Section 145, Cr.P.C. if the Magistrate is satisfied that a dispute likely to cause breach of the peace exists between the parties concerning the land etc and that it is expedient to start such proceedings as, in my opinion, proceedings Under Section 145, Cr.P.C are quite different from that of civil or revenue proceedings. In this connection, I may refer to my previous judgment in Shanker Lal v. State of Rajasthan 1977 WLN 534. No other point has been pressed before me in this revision petition.
7. The result of the above discussion is that I accept this revision petition filed by the petitioners and set aside the orders of the learned Additional Sessions Judge and the Sub-Divisional Magistrate, Baran, dt May 1, 1975 and Apr. 25, 1972, respectively and remand this case to the Sub-Divisional Magistrate, Baran, for proceeding further in accordance with law and in the light of the observation made above.