In a proceeding under Sec.145, Code of Criminal Procedure, the parties have been permitted to adduce evidence by means of affidavits and affidavits cannot be ignored.

Kanhaiya Singh, J.

1. This is an application in revision against the order of the Subdivisional Magistrate, Khagaria dated the 19th December, 1958 in a proceeding under Section 145. Code of Criminal Procedure. By this order, he declared the first party to be in possession of the disputed land.

2. One of the points taken by the learned counsel in support of this application is that the affidavits tiled by the parties have not been taken into consideration by the learned Magistrate, Learned counsel referred to the following observations of the learned Magistrate:-

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"A large number of affidavits have been filed on behalf of both the parties. There are thus men from both the sides to swear on oath that the land in dispute belongs to this party and that party. There is oath against oath and affidavits against affidavits. It is difficult to attach any value to these oaths and affidavits."

It will appear from the above that the learned Magistrate has ignored the affidavits altogether and has taken into consideration the documents and other circumstances of the case. No doubt, he preferred his judgment by saying that he was going to consider the affidavits and other circumstances relating to the possession of the disputed land by one or the other party but as will appear from the above, the affidavits have not been considered. If the affidavits are ignored, it is difficult to understand on what evidence the question of possession will be decided. Both the parties have no doubt filed documents and there may be some circumstances but by themselves they are inadequate to establish possession. They may be taken into consideration in support of one or the other version given by one or the other party but the documents by themselves cannot and do not establish possession. For establishing possession one has to refer to the affidavits.

At present in deciding a proceeding under Sec.145, Code of Criminal Procedure, the parties have been permitted to adduce evidence by means of affidavits and affidavits cannot be ignored in the manner as has been done by the learned Subdivisional Magistrate. He had to consider the affidavits and give reasons for accepting the affidavits of one or the other party. He cannot ignore the affidavits and base his finding of possession on documents or other circumstances. To that extent his judgment is entirely vitiated and it must be said that there is no legal basis for the finding of possession recorded by the learned Magistrate. On this one ground alone the order of the learned Magistrate cannot be sustained.

3. In the result, this application is allowed, the order of the learned Magistrate dated the 19th December, 1958 is set aside and the case is sent back for disposal in accordance with law.