An order passed by a court without hearing both parties and without considering the evidence adduced by them is irregular and has to be set aside.

The learned Sessions Judge has made this reference about the order of the Additional District Magistrate, in Criminal Case No. 8 of 1958, with recommendation that the said order may be set aside.

2. The reference arises out of a petition filed by one party before the Additional District Magistrate, stating that they were in possession of a certain land and that the opposite party were threatening to enter forcible possession of the land and the first party prayed for action under Ss. 384/447 and 341 I. P. C. The learned Additional District Magistrate, called for a Police report and being satisfied that there was an apprehension of breach of the peace drew up proceedings under S. 145 Cr. P. C. and attached the land in dispute and issued notices to both parties to file their written statements.

3. Both parties filed their written statements. The case of the first party was that the land in question had been leased to them for five years by the Forest Department on 17-6-54. The case of the second party was that the second party were allowed to shift their village to the disputed land by the Deputy Commissioner by his order dated 9-5-57 and that the second party men were actually living in houses built in the said land and cultivating the same. The learned Additional District Magistrate called upon both parties to file their affidavits in support of their respective claims. But he was unable to make his mind after a perusal of the affidavits. So, he sent the case to the S. D. C., Thoubal, to report whether the area in dispute was in the Forest reserve after making a local enquiry along with the Forest Officer. He directed the report to be sent by 14-5-58. The report was also received before that date.

4. On 14-5-58, the second party did not appear. Then, the learned Additional District Magistrate proceeded to pass an order stating that the second party were not present to prove their case, that he had seen the lease in favour of the first party, that the land described in the lease covered the case and that the possession of the second party could not be legally supported, because no subsequent permission was possible without the cancellation of the first lease. The learned Additional District Magistrate therefore held that the land was in the possession of the first party in a legal and regular manner and therefore confirmed the possession of the first party and directed the second party not to interfere with the said possession. It may however be mentioned here that the order did not show that the report of the S. D. C., Thoubal which had been received before 14-5-58 by the Additional District Magistrate, was relied on to pass the said order, though it states that the report has been received.

5. Now the learned Sessions Judge says that the Additional District Magistrate has dealt with the question of the rights of the parties in the proceeding under S. 145 Cr. P. C., that the only question which he could decide under the said section was the question of actual physical possession and not the right to such possession, that the Additional District Magistrate has not discussed the evidence adduced before him by either party regarding the question of actual possession, but had mainly based his conclusion on the report of the S. D. C., which was not admissible in evidence and that therefore his order should be set aside.

6. There can be no doubt that the criticism of the Sessions Judge is well-founded. The learned Additional District Magistrate was not concerned either with the lease in favour of the first party in 1954 by the Forest Department or with the order of the Deputy Commissioner in favour of the second party in 1957, except in so far as they would help him to decide the question of actual possession. The second party had, in fact, stated that they had shifted their village to the land in dispute and built houses therein and were cultivating the said land. This could easily have been verified by a local enquiry under S. 14