L.S. Mehta, J.
1. The dispute between the applicant Pala Singh and the nonapplicants Ram Singh and others relates to 19 bighas 10 biswas of land (Khowat No. 5 and Khatoni No. 41), situate in Chak No. 10 JRK, Tehsil Hanumangarh. On receipt of the application from Pala Singh a preliminary order was passed by the learned Sub-Divisional Magistrate, Hanumangarh, on August 7, 1968, requiring the parties to adduce evidence in respect of their respective claim to the said property. The non-applicants Ram Singh and others produced their evidence on October 7, 1968 On November 4, 1968, Pala Singh moved an application in the court of the Sub Dvisional Magistrate, Haunmangarh, requesting that the Revenue and Irrigation Patwaris of Chak No. 10 JRK should be summoned together with the relevant record. That prayer was opposed by learned counsel for the non-applicants and it was urged that under Sub-section (4) of Section 145, Cr. P. C , all parties to the proceedings could adduce evidence in respect of only such persons who had put in their affidavits Counsel for the applicant Pala Singh, on the other hand, argued that under Sub-section (9) of Section 145, Cr. P.C.. a party could move the Magistrate to issue summons for the attendance of a witness who might not have filed an affidavit. Learned Sub-Divisional Magistrate rejected the application on the ground that the examination of a witness should be confined to the limits imposed by the newly added proviso to Sub-section (4) of Section 145, Cr. P.C.
2. A revision application was filed against the above finding and the learned Additional Sessions Judge, Ganganagar in his order dated 25-5-1970,observed that the view expressed by the Sub-Divisional Magistrate, Hanumangarh, was erroneous. According to him Sub-section (9) of Section 145, Cr, P.C., gives ample power to the Magistrate to call and summon any witness, whose affidavit has or has not been filed. He has therefore, submitted a reference to this Courr recommendeng that the order of the Sub-Divisional Magistrate, Hanumangarh dated November 19, 1968, should be quashed.
3. The sole point requiring decision is whether in view of the amended provisions of Sub-section (4) of Section 145, Cr. P.C., a party to the proceedings has got a right to have a witness summoned, with a view to examine him, even if no affidavit of such a witness is forthcoming, Sub-section (1), (4) and (9) of Section 145, Cr. P.C., read as follows:
(1) 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 a Magistrate, and to put in written statement of their respective claim as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.
(4) The Magistrate shall then, without refeaence to the merits of the claims of many 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 practicable, within a period of two months form date the 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 before Mentioned in such possession of the said subject:
Provided 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; Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:
Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section.
(9) The Magistrate may, if he thinks fit, at any stage of the procee dings under this section, on the application of either party issue a sum mons to any witness directing him to attend or to produce any document or thing.
A comparison of the provisions of Sub-section (1) and (4), as they existed prior to the amendment and as they exist now, makes it manifest that under the old procedure the parties were required to put in their written statements in the first instance and then they were entitled to examine such witnesses as they deemed fit. Under the amended provisions the parties are not only required to put in in written statements by the date fixed by the Magistrals, but by the date fixed by the Magistrate, but they have further to submit their documents and adduce evidence of such persons as they rely upon in support of the claim by putting in affidavists. Under Sub-section (4) the Magistrate is required to arrive at the relevant conclusion on the basis of writte statements, documents and affidavits put in by the parties. The power of the Magistrate to call witnesses under the first proviso to Sub-section (4) is confined to the examination of only such of the persons whose affidavits have been put in.
4. In proceedings under Section 145, Cr. P.C., the Magistrate can hold a summary inquiry into the question of phssession, He has to ask the parties pot only to put In written statements of thir respective claim but also to produce simultaneously all documentary evidence in support of such claim If the parties propose to rhly on the evidence of any withess, thep should file his affidavit. It should not ordinarily be nacessaty for a Magistrate to take oral evide nee, but he may, if he thinks fit, examine any person whose affidavit has been put in and after hearing the parties the Magistrate can arrive at the conolusion as to who is in possess on of the property. To avoid undue delay the Legislature has further provided that an inquiry under Section 145, Cr. P. C , should be concluded within a period of two months from the date of appearance of the parties before him The amendment by Act No. XXVI of 1955 has made a change in the mode of conducting the inquiry under the section. According to the old Sub-section (1) the parties in the first instance were only required to file written statements in regard to their respective claim. Under Sub-section (4) (as it stood prior to the amendment) they were entitled to examine such witnesses as they deemed fit and it was thereafter that the Magistrate was to make up his mind as to which party was in possession, after taking into consideration the written statements filed under Sub-section (1) and the evidence produced by the parties under Sub-section (4). The amending Act has added the following words to to Sub-section (1):
and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims
After this adition, the parties are not only required to put in written statements by the date fixed by the Magistrate but they are also required to put in documents and to adduce evidence of such persons as they rely upon in support of such claim by putting in affidavits. In other words the powers of the Magistrate under the old Sub-section (4) to examine further evidence has now been curtailed by the first proviso and the power is restricted to the examination of only such of the persons whose affidavits have been put in under Sub-section (1). Thus, the Amendment has taken away the right which the parties could claim under the old Sub-section (4) to adduce oral evidence to prove the fact of prossession. The Amending Act has introduced the method of proof by putting in affidavits of those on whom the partses rely in support of their case. It is now no more open to the parties to give any oral evidence otherwise than in accordance with the proziso to Sub-section (4) of Section 145, Cr. P.C.
5. Sub-section (9) as it stood before the amendment is retained in full Under this sub-section the Magistrate is empowered, if he thinks fit, at any stage of the proceedings on the application of either party, to issue summons to any witness directing him to attend or to produce any document or thing. The continued existence of Sub-section(9) has given rise to conflict of opinion on the question whether a party is entitled to apply for summoning a witness whose affidavit has not been filed. In Bahori v. Ghure , Sarjoo Prasod C. J., hald:
The proviso to Sub-section (4) of Section 145 is merely an enabling provision of law which entitles the Magistrste 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 witness any other person that he thinks proper to examine. Sub-section (9) of Section 145 contemplates such a situation.
The decision in the above mentioned case was based on the provisions of Section 540, Cr. P.C., which gives ample powers to a court holding an inquiry or trying a case to examine or re-examine any witness if in the view of the court his evidence appears to be essential to the just decision of the case. No such question arises in the present case. The observations in the above case of this Court with regard to Sub-section (9) if I may say with respect, were mere obiter.
6. This matter came up directly for decision in Bhagwat Singh v. State : AIR1959All763 . Desai J. held in that case:
Sub-section (9) does not confer any right upon a party to examine a person as its witness; it only lays down the procedure to be followed in procuring the attendance of its witnesses...All that the sub-section means is that if a party (1) AIR 1960 Raj. 15 (2) AIR 1959 All. 763. has a right to examine a witness orally, it may obtain from the Magistrate a summon directing him to attend the court. The first proviso to Sub-section (4) is the only provision which confers a right upon a party to examine a witness orally in the court; so Sub-section (9) must be read with the first proviso to Sub-section (4).
7. The matter went up for consideration before Orissa High Court in Harihar Pati v. Bada Pitel Naik (3). In that case Narasimham C. J., observed:
In view of the first proviso to Sub-section (4) of Section 145, Cr. P.C. (as amended) the Magistrate can summon only those witnesses who have already filed affidavits before him and witnesses cannot be summoned merely for the purpose of enabling them to file affidavits In the proceedings. Sub-section (9) cannot be construed as giving wide power to the Magistrats to summon any witness. The affidavits should be put in first and then the question of summoning any of them would arise for consideration.
If the reason given by the learned Additional Sessions fudge, Ganganagar, that the proviso to Sub-section (4) of 145, Cr. P.C., does not preclude the Magistrate from calling as a witness any other person under Sub-section (4) of Section 145, is accepted as correct, either party has a right to apply even for the summoning of a witness, whose affidavit has not been filed, with a view to examine him orally. In that situation, the very object of Sub-sections (1) and (4), as amended, would be frustrated. The procedure instead of being shortened and to be concluded ithin a space of two months would become cumbersome. Tnus, I have no doubt in my mind, that Sub-section (4) of Section 145, Cr. P.C., does not give any right to a party to summon or examine any witness orally apart from the right given to it to adduce evidence in accordance with the provisions of Sub-section (1) read with Sub-section (4) and the oral evidence must be canfined within the limits imposed by the newly added proviso namely the first proviso to Sub-section (4) The powers of the court under Section 240, Cr. P.C., to summon any witness at any stage of the inquiry are, however, not in any manner impaired by any of the provisions of Section 145, Cr. P.C.
8. For the foregoing reasons, I think the learned Sub Divisional Magistrate, Hanumangarh, took the correct view and the reference made by the learned Additional Sessions Judge, Ganganagar, is not proper. The reference is accordingly discharged and the order of the Sub-Divisional Magistrate, Haunmangarh, dated November 19, 1968, is maintained.