Scope of the provisions of Section 145(4) of the Act.

Order.- This revision petition is directed against the order, dated 13th December, 1977 passed by the Executive Magistrate, Sagar Taluk, Sagar, in C.Mis. Case No. 2 of 1977-78, under section 145 of the Code of Criminal Procedure, holding that respondent No. 2, Party No. 2, was in possession of the property in dispute, namely, Survey No. 38 of Hosahalli village, on the date of the preliminary order, namely 15th November, 1977 and that he is entitled to harvest the standing crop and also that he is entitled to peaceful possession and enjoyment of the same.

2. The relevant facts are that the Sub-Inspector of Police, Rural Police Station, Sagar, filed a report, dated 19th August, 1977, to the Executive Magistrate, Sagar Taluk, Sagar, requesting that action under section 145 of the Code of Criminal Procedure be taken in regard to the said land. The learned Magistrate issued a preliminary order on 15th November, 1977 calling upon the parties to appear before him on 24th November, 1977 to put in written statements of their respective claims as to the fact of actual possession of the subject-matter in dispute. Both the parties were present on 24th November, 1977. The learned Magistrate adjourned the case to 8th December, 1977 for evidence. On 8th December, 1977, both the parties were absent. He, therefore, directed issue of fresh notices calling upon the parties to be present before him on 19th December, 1977. But, by 9th December, 1977, the second party filed an application before the learned Magistrate praying that emergent order be issued in regard to the harvesting of the crop as the crop on the land was ready for harvesting. The learned Magistrate directed issue of emergent notices to the parties to appear before him on 13th December, 1977 for the purpose of enquiry in the case. On 13th December, 1977, both the parties appeared. No written statements were filed. The petitioner, first party, produced one ‘Patta’ Book and two receipts for having paid land revenue. The second party produced receipts for having paid land revenue, Grain Vouchers for having paid the levy paddy, Pahani extracts for the years 1977-78, Fertiliser Card for having secured grant of fertiliser to him by the Agricultural Department in regard to the land and an application addressed by him to the Village Accountant for writing a Pahani in his name and affidavits of Shri Shankaranarayana Rao and Hutchamma, who were said to be the cultivators of the adjacent lands. The learned Magistrate received this material on record and then proceeded to pass the impugned order.

3. In the impugned order, the learned Magistrate has reasoned that it was clear to him that the father of Party No. 2 had been paying land revenue as a cultivator since 1938; that the Pahani for the current year was also in favour of the father of Party No. 2; that the Pahanies for the previous years also indicated that the father of Party No. 2 had cultivated the land; that Party No. 2 was paying the levy paddy and he had been granted the fertiliser by the Agricultural Department in regard to the said land; that the patta of Party No. 2 disclosed that he was paying land revenue for the land for the year 1973-74, 1974-75, 1975-76, 1976-77 and 1977-78 as ‘Khatedar’ and, lastly, that the affidavits of Shri Shankaranarayana Rao and Hutchamma also were in support of his possession and enjoyment. It is only on this reasoning that he has held in favour of Party No. 2. He has nowhere adverted to the two documents produced by the first party.

4. It is plain from what has been narrated in the preceding paragraph that the learned Magistrate has produced an order after refering to the material relied upon by Party No. 2 only and without adverting to the material produced by the first party and weighing that material with that produced by Party No. 2. This is one lacuna in regard to the merits of the order passed by the learned Magistrate.

5. Section 145(4) of the Code of Criminal Procedure reads as follows:

“The Magi

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