Balakrishna Aiyar, J.
1. These are two petitions to revise a consolidated order made by the Additional First Class Magistrate, Virudhunagar, in M. C. Nos. 36 and 38 of 1951 on his file, finding the respondents to be in possession of the property in dispute and under Section 145(6) placing them in possession thereof.
2. Mr. Narayanaswami Aiyar, the learned advocate for the petitioners, took the preliminary objection that the entire proceedings before the Magistrate are void for the reason that no preliminary order as required by Section 145(1), Cr. P. C., was issued.
Mr. Vaidyanatha Iyer, on the other side, replied that as a matter of actual fact orders under Section 145(1), Cr. P. C., must have been issued because in a letter dated 22-9-1951, addressed by the Joint Magistrate, Bivakasi, to the District Magistrate, Ramanathapuram, suggesting that the case be transferred to the Additional First Class Magistrate, Virudhunagar, it is stated, 'as it is anticipated a dispute likely to cause a breach of the peace and the parties were served an order under Section 145(1), Cr. P. C. (sic)'. Now no copy of such an order exists in the file.
On a refrence made to the Additional First Class Magistrate, Virudhunagar, he reported
'No separate orders under Section 145(1) , Cr. P. C, are available in the records received from the Executive Magistrate, at the time of the transfer of the case to this Court. The Executive Magistrate Sivakasi, who was subsequently addressed by me reports that no such orders under Section 145(1), Cr. P. C., are available in the records of his office also.'
It is clear to me that no order under Section 145(1),Cr. P. C., was actually issued because if it hadbeen, the office copy of it ought to have been inthe file. Besides, the copies served on the partiesmust have also been placed in the file and everyone of these could not have been lost.
The likelihood is that what the Joint Magistrate refers to as an order under S. 145(1), Cr. P. C., is merely the notice dated 1-8-1951 intimating the parties that the petition under Section 145, Cr. P. C., stood posted to 2-8-1951 at Sivakasi for hearing. That is really not an order under Section 145(1), Cr. P. C,
3. Mr. Narayanaswami Aiyar, for the petitioners, contended that the omission to issue an order under Section 145(1), Cr. P. C., vitiates the entire proceedings of the Magistrate. In support of this argument he referred to the decision of Ayling J. in -- 'Subbarama' Aiyar v. Mariya Pillai', AIR 1914 Mad 78 (A), where the learned Judge observed oh p. 81:
'On the other hand it seems to me 'that the Magistrate's proceedings are void 'ab initio' by reason of his failure to comply with the requirements of Clause (1) of Section 145, Cr. P. C. This provides that where a Magistrate is satisfied that a dispute exists regarding any land or water or the boundaries thereof within the local limits of his jurisdiction, he shall record a formal order in writing setting forth the grounds of his being so satisfied and requiring the disputing parties to attend his court and file written statements. It is only in this way that proceedings under Section 145 can be initiated. The provision of law is imperative and failure to comply with it destroys the Magistrate's Jurisdiction.'
To the same effect is the decision of Burn J. in -- 'Mariasusai Udayan v. Mahamud Azzeezudeen Sahib AIR 1936 Mad 824 (B). The learned Judge observed:
'.... The decisions of this court so far tend to show that unless there is a preliminary order under Section 145(1), Cr. P. C., the magistrate has no jurisdiction to pass any order under Section 145(6), Cr. P. C. These decisions I would say, with all respect, are correct for the reason which I have already indicated.'
That reason runs in these terms:
'There was nothing to prevent the learned Sub- Divisional Magistrate from drawing up a preliminary order under Section 145(1), Cr. P. C., on the date on which he decided that the case was one properly falling under Section 145, Cr. P. C. The importance of this is that the question of possession with reference to the date of the preliminary order (See Section 145(4), Cr. P.C.) and if there is no preliminary order the one questionwhich the Magistrate has to decide cannot be decided.'
4. Mr. Vaidyanatha Aiyar on the other side referred to a number of decisions which I shall now examine.
The decision in -- 'Madan Mohan Lal v. Mt. Sheoraj kunwar : AIR1932All446 , is the one most in point and in that Boys J. made a fairly detailed examination of the subject and expressed the view that the omission to draw up an order under Section 145 (1), Cr. P. C., has nothing whatever to do with the question of jurisdiction. He observed:
'.......it appears to me that it would be quite unjustifiable and unreasonable to set aside lengthy proceedings under Section 145, when the facts indicate that the parties could, not conceivably have been prejudiced by the absence of a formal order, where it is manifest that they knew well all the facts and contested the matter with the advantage of the knowledge of the whole of the facts.'
The decision in -- 'Mg. Po Lon v. Mg. Ba On', AIR 1925 Rang 111 (D), is no doubt to the same effect; but there is no discussion of the matter and no reasons are assigned.
So too in the decision in -- 'Nur Bakhsh v. Emperor', AIR 1917 Lah 35 (E). Another case reported on the same page -- 'Sajad Hussaln v. Nanak Chand', AIR 1917 Lah 35 (F), is distinguishable because the report makes it clear that on a subsequent date an order, which essentially complied with the requirements of Sub-clause (1) of Section 145 was placed on record and no prejudice whatever was caused to either party by the omission to draw up the order earlier.
The case in -- 'Kapoor Chand v. Suraj Prasad : AIR1933All264 , does not really help Mr. Vaidyanatha Aiyar, because in that case there was an order, though somewhat defective in form under Section 145 (1), Cr. P. C. The decisions of the other courts to which reference was made during the arguments are at variance with at least two decisions of this court, and if I may say so with respect, I prefer the reasoning of Burn J., because, as already explained under Section 145, Cr. P. C., the Magistrate has to determine who was in possession on a particular date and that date is the date of the order under Section 145 (1) and if there is no order under Section 145 (1), Cr. P. C., there will be no date with reference to which the question of possession can be determined.
5. In this view, the objection raised by Mr. Narayanaswami Iyer must be upheld. The result is that these criminal revision cases are allowed and the orders complained of set aside.