Seshagiri Aiyar, J.
1. In this case I cannot, help saying that the attempt of the first class Magistrate to take a short cut has resulted in an unnecessary prolongation of the proceedings. The chief complaint is that the witnesses summoned by the second party, one of whom is the petitioner in this Court, have not been examined. There is no doubt that these witnesses were summoned and were present at the time the Magistrate passed his order. The Magistrate himself says that it was unnecessary to examine the witnesses, as the documents filed before him showed that the first party was in possession.
2. The facts are these. There was a complaint by the first party that on the 7th September 1915, while they were in peaceful possession of the property, the second party attempted to take forcible possession from them and threatened to commit a breach of the peace in furtherance of their object. Therefore, the question which the Magistrate had to decide was as to who was in possession of the disputed property on 21st September 1915, when the Magistrate passed his preliminary order. The documents to which the Magistrate refers stop with the end of Fasli 1324, i.e., 1st July 1915, as the last kist receipt produced by the first party was for Fasli 1324. No other document has been put in showing the payment of kist since July 1915, and there is no document to show as to who was in possession after July 1915. Mr. Madhavan Nair drew my attention to the fact that there was a report by the Village Magistrate immediately after the presentation of the petition, which showed that the possession was with the first party, It is enough to say with reference to this argument that the Village Magistrate has not been examined in this case and that consequently the report sent by him after the matter was taken up by the Magistrate is not evidence. Another suggestion by Mr. Madhavan Nair is that, as in the course of the inquiry, the second party who are the petitioners in this Court stated (falsely, we will take it for the purpose of this case) that they themselves paid the money to the first party for the kist, they were conscious that payment of kist implied possession. I am unable to agree that, by making this untrue statement, they admitted that the first party was in possession, if they paid kist. Under these circumstances, it was obviously the duty of the Magistrate to have taken evidence to ascertain as to who was in possession on 21st September 1915. Under Section 145 of the Criminal Procedure Code, it is clear that the Magistrate is bound to take the evidence tendered to him on the question of possession at the date of the preliminary order. The section is imperative and says, 'The Magistrate shall hear the parties, receive the evidence produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.' Throughout the order of the Magistrate there is not a word said about possession on the 21st September 1915, the date on which he must find who was in possession. As myself and Mr. Justice Spencer said in the judgment in Thumbalabed Humpanna v. Parisi Gangamma 27 Ind. Cas. 911, when the mind of the Magistrate is not applied to finding as to who was in possession on the date of the preliminary order, the proceedings must be taken to have been passed without jurisdiction. I adhere to that view. I am also bound by the considered opinion of a Bench of this Court in Raja of Karvetnagar v. Lodd Govind Doss Krishna Doss 29 M.S 561, where the learned Judges have laid down distinctly that failure to receive the evidence tendered would amount to the declining of jurisdiction by the Magistrate. Mr. Madhavan Nair, Counsel for the first party, drew my attention to the judgment of this Court in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 and argued that if the Magistrate after passing the preliminary order committed any irregularities in the trial, such irregularities would not amount to mistakes in the exercise of jurisdiction. The language employed by the learned Judges is this: ' Once he (the Court) is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation to procedure, not to jurisdiction.' Speaking for myself, I am inclined to think that the obiter in this sentence requires some modification. However that may I be, there was no question in that case of a : refusal to record any evidence which was tendered, and I am not prepared to read the sentence which I have quoted as containing a pronouncement that once the Magistrate has passed his preliminary order no subsequent irregularity on his part would amount to the declining of jurisdiction where the express provision of the law is departed from. There can he no doubt that the action of the Magistrate would amount to a refusal to exercise jurisdiction, because the finding as to possession is of the essence of the proceedings under Section 145, and a failure to observe the law in that behalf must have the effect of declining jurisdiction when Courts hold that a failure to pass a preliminary order amounts to failure to exercise jurisdiction. The reason of the rule is that an express provision of the law having been ignored, the conditions of jurisdiction under the section have failed. The same reasoning applies to cases where there has been a disobedience of the imperative provisions of Clause (4) of Section 145. The two grounds which justify proceedings under this Chapter are apprehension of a breach of the peace and a threat to disturb peaceful possession. Any violation of the law which deprives the party from placing the materials to enable the Magistrate to arrive at a conclusion on these two vital points, must be regarded as affecting jurisdiction. Subsequent to the decision in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65, in addition to the decision to which I was a party along with Mr. Justice Spencer, there was a decision of Mr. Justice Sadasiva Aiyar, Palani Chetty v. Rathina Chetty 24 Ind. Cas. 597 in which the learned Judge seems to consider that any illegality or manifest irregularity in procedure would warrant the interference of the High Court. Speaking for myself, I. am entirely at one with the learned Judge in the view that this Court has jurisdiction to consider the proceedings of the Magistrate where we are satisfied he has acted illegally, or has committed serious irregularities in the procedure. But it is not necessary to decide that point, because in this case I am satisfied that the refusal to take the evidence is a refusal to exercise the jurisdiction which the law has conferred on the Magistrate.
3. As regards the decisions of the other Courts, Abhayessari Debi v. Shidhessari Debt 16 C. 513 was much relied on. It is enough to say of this case that it is not a considered opinion upon the question I am now asked to decide, because the learned Judges say that, apart from the casual remark made about essence they were basing their decision on other points. As regards the case In the matter of the petition of Nathu Mal (1902) A.W.N. 74, it was found in that case that the Magistrate had examined about ten witnesses and being of opinion that the party was unnecessarily prolonging the litigation by asking the Court to examine more witnesses, he refused to examine the witnesses who had been already summoned. That is a matter upon which there has been some doubt. Where the Magistrate considers that there has been a vexatious attempt on the part of a party to prolong the proceedings it cannot be said that he has declined jurisdiction by refusing to examine further witnesses. Therefore the decision in In the matter of the petition of Nathu Mal (1902) A.W.N. 74 does not affect the present question. On the other hand, the decision of the Calcutta High Court in Kolha Koer v. Muneswar Tewari 6 Cri.L.J. 452 supports the view taken in Madras in Raja of Karvetnagar v. Lodd Govind Doss Krishna Doss 29 M.s 561.
4. For these reasons, I am of opinion that the order of the Magistrate must be set aside and the case sent back to him for re-hearing. Costs will be dealt with by the Magistrate when he passes the revised order. Mr. Madhavan Nair wants to say that his client must be permitted to adduce further evidence if the other side tenders any evidence. The Magistrate will be directed to hear the evidence of both sides, if tendered. Petition allowed; Case sent back.