N. Krishnaswamy Reddy, J.
1. This revision petition has been filed by the unsuccessful B party against the order of the Sub-Divisional Magistrate, Villupuram, in Miscellaneous Case No. 112 of 1966, declaring that the first respondent and the other villagers (A party) have a right to take dead bodies through the lands of the revision petitioner to the burial ground and forbidding the revision petitioner from interfering with the said right of the respondent and other villagers.
2. The facts of the case are briefly these; on the report submitted by the Sub-Inspector of Police that the respondent (the revision petitioner herein) obstructed the mamool pathway running through his lands and that such obstruction was likely to lead to a breach of the peace, the Ex-officio First Class Magistrate passed a preliminary order calling upon the parties to file documents and affidavits and let in evidence to substantiate their claims. The revision petitioner filed a written statement contending that there was no mamool pathway through the land purchased by him and that no such pathway has been demarcated in the village records. He further contended that the dead bodies were being taken only along the mud road put up by the Panchayat Board. The Sub-Divisional Magistrate, Villupuram, took up enquiry. The respondent herein filed 14 affidavits and examined one Munnuswamy Gounder in Court as P. W. 1. The revision petitioner herein filed Exhibits D-l to D-4 and 29 affidavits; but he did not examine any witness. The learned Sub-Divisional Magistrate perused the affidavits filed by both the parties and ultimately found that there was a pathway in the land of the revision petitioner through which the villagers used to take the dead bodies to the burial ground and declared that the respondents have a right to take the dead bodies through the lands of the revision petitioner.
3. The only point that has been raised in this case by the revision petitioner is that the learned Sub-Divisional Magistrate was in .error in receiving the affidavits and passing an order on the basis of those affidavits without hearing the parties and receiving evidence which might be produced by the parties and without considering the effect of such evidence. There appears to be some force in this contention. The order of the learned Sub-Divisional Magistrate is very much based upon the affidavits received by him.
4. Section 147 (1-A), Criminal Procedure Code, is in the following terms:
The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be 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 such right exists and the provisions of Section 145 shall, as far as may be, applicable in the case of such enquiry.
5. This section makes it clear that the Magistrate can receive evidence and act upon such evidence whereas Section 145 (1), Criminal Procedure Code, provides for filing affidavits. Under Section 145 (4), Criminal Procedure Code, the Magistrate can peruse the affidavits. In contradistinction to Section 145 (1) and (4), Criminal Procedure Code, Section 147 (1-A), Criminal Procedure Code, does not give power to the Magistrate to receive affidavits and consider such affidavits : but he can only receive evidence and consider the same.
6. In Jayarama Mudaliar v. Bhoomi Ammal (1964) 2 M.L.J. 481 : (1964) M.L.J. 649, Ananthanarayanan, J., as he then was held:
In deciding a question of a dispute concerning user of immovable property under Section 147 of the Criminal Procedure Code it is not open to the Magistrate to receive and act upon the evidence on affidavits. Though Section 145 (1) makes specific provision that the parties should be called upon to adduce evidence by affidavits, Section 147 (1-A) is in different terms that the Magistrate shall receive all such evidence as may be produced by the respective parties.
7. I agree with the above decision. Another point that was raised by the revision petitioner was that the order of the learned Magistrate declaring that the villagers as a whole are entitled to carry the dead bodies through his lands, cannot be sustained for the reason that they were not parties to the proceedings. I do not think there is any substance in this contention. We find in this case that at least 14 villagers have filed affidavits., The right of usage of the pathway is of such a nature that the entire public will be interested in carrying he dead bodies. On the view that I am taking, in this case, it may not be necessary to consider this point at this stage.
8. The order of the Sub-Divisional Magistrate is quashed; but the entire proceedings are remitted to the Sub-Divisional Magistrate for disposal according to law. The Magistrate must now hear the evidence adduced by the parties, if any, and any additional evidence that the Court may require to take. In taking up the proceedings again, the Magistrate also must find outwhether breach of the peace exists and, if necessary, should call for a report from the police concerned.
9. The petition is allowed with the above observations.