A distinction should be made between "being a witness" and "appearing as a witness". Section 479-A, Cr. P. C. applies only when a person "appearing before a Court" as a witness intentionally gives false evidence or fabricates false evidence.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is a revision against the appellate order of the Sessions Judge of Puri, under Section 476-B, Criminal Procedure Code, setting aside the order of the munsif of Puri directing the filing of complaint for the prosecution of the opposite party for an offence under Section 193, I. P. C.

( 2 ) THE petitioner who is a resident of Puri Town filed a Civil Suit (0. S. No. 1 of 1958.) in the Court of the Munsif of Puri against the Executive Officer of Puri municipality and others. In* the course of that suit the defendants namely Puri municipality filed a petition on the 30th August I960 praying for the issue of an injunction against the petitioner. The petitioner filed a rejoinder to that petition Ex. A dated 31-8-1960) alleging certain facts for the purpose of showing that injunction should not be issued. Then as directed by the Court by its order dated 1st September, 1960, he filed an affidavit on the 2nd September 1960 and gave a copy of the same to the defendant on the 3rd September 196o. In that affidavit he swore to the existence cf the following facts in respect of the lands in dispute in that litigation (See Ext. 5) :

(i) There was a gate of bamboo on the south-east corner of the disputed land.

(ii) There was a wall of arranged bricks of certain specified dimensions from the said gate to the south-west corner, So the north-west and on the western side of that wall, and again-from the north-west corner to the north-east corner.

(iii) There were three posts inside the disputed land for tying up cattle. (iv) There was a heap of hay (kuta gada) for feeding cows. (v) There were ten creepers of Janhi vegetable and pumpkin on the disputed land, which after having grown on that land had climbed up to the roof of his house and they were bearing fruits.

(vi) There was a big begurrfa tree on the western-side of the land from the south western corner. These details were given, in the affidavit, mainly with a view to show that injunction should not issue against the petitioner because he was in actual possession and enjoyment of the disputed land which was part and parcel of his homestead, as alleged in the rejoinder (Ext. 4 ).

( 3 ) TO the aforesaid affidavit the opposite party who t's a person working in the office of Pu'ri Municipality filed a counter affidavit on the 6th September 1960 in which almost everyone of the aforesaid allegations of fact were categorically denied (see Ext. 6 ). For instance the allegation In respect of the following were denied :

(i) The existence of a bamboo gate on the south-estern corner of the plot. (ii) The existence of a wall of arranged bricks all round the disputed plot. (iii) The existence of three posts inside the plot for tying up cattle. (iv) The existence of paddy hay for cows. (v) The existence of ten creepers of Janhi and pumpkin bearing fruits.

( 4 ) IN view of the sharp contradictions in the affidavits of the two parties as regards the existence of certain facts, the learned Munsif had no alternative but to depute a Pleader Commissioner to visit the spot, inspect the same carefully and submit a report as to which of the two affidavits contained true statements of fact. The report of the pleader Commissioner dated 12th September 1960 (Ext. 1a)substantially supported the statements made by the petitioner in Ext 5. He thus noticed an arranged brick wall (without the bricks being bound together with morter) on three sides of the disputed land, on the north, sduth and west. The measurements made by him also corresponded with the dimen- sions given by the petitioner. He also found a gate fixed on the south east corner, made of pieces of bamboo and split bamboo tied with rope. He found two small wooden posts and one bamboo post fixed on the eastern side of the disputed land. He found three budding Janhi plants and a budding pumpkin plant which had climbed up to the thatch of the house lying adjacent each of the disputed land. He also found a paddy heap on the north