KAILASH PRASAD, J.

( 1 ) THIS reference by the Civil and Sessions Judge, Gyanpur arises from proceedings under section 145 of the Cri P. C. The proceedings originated on the application of one Mahangi (first party) alleging that he was in possession of a plot of land surrounded by a boundary wall behind the house of Wahid and Zahid (Second Party ). Both the parties claimed to be in possession of the enclosure in dispute. The Sub-Divisional magistrate, after considering the affidavits put in by the parties and inspecting the locality, found that Mahangi (first party) was in possession of the disputed property. He accordingly ordered the property to be released in favour of Mahangi and directed Wahid and Zahid (second party) not to interfere with the peaceful possession of mahangi until he is evicted by a competent Court of law.

( 2 ) DISSATISFIED with this order, Wahid and Zahid (second party) filed a revision before the sessions Judge. It appears that the Sub-divisional magistrate, who inspected the locality, did not record a memorandum of the facts observed by him at the inspection as required by Section 539a, Cri. P. C. The observation of the Sessions Judge on this omission on the part of the magistrate is that the magistrate acted in a very unsatisfactory manner. The Sessions Judge further observed that the Magistrate used the facts observed by him at the time of inspection as substantive piece of evidence without giving an opportunity to the parties to file objections thereto and consequently the magistrate acted with illegality and material irregularity sufficient to vitiate the judgment. The Sessions Judge also found that the affidavits filed on behalf of Mahangi (first party) were not properly sworn and could not, therefore, be taken into consideration. If the affidavit filed by the first party in support of his claim were taken out there was no evidence to prove that the first party was in possession of the disputed enclosure. Another finding given by the learned Sessions judge is that the magistrate did not discuss the evidence of the parties as required by law. For these reasons the learned Sessions Judge has made a recommendation that the order of the magistrate be set aside and he be directed to proceed with the case in accordance with law after giving opportunities to the parties to file further properly verified affidavit.

( 3 ) THE first point that arises for consideration, therefore, is whether the affidavits filed by the parties were properly sworn and could be considered as proper evidence in the case. Under the provisions of Section 145. Cri. P. C. , a party to the proceeding can adduce evidence of such persons as the party relies upon in support of his claim by putting in affidavits of those persons. The affidavits that were put in by Mahangi (first party) were verified and taken before an oath commissioner appointed by the High Court under Section 539, Cri. P. C. On the back of those affidavits there is a note of attestation. That note does not show on its face as to who is the attesting authority, because the designation of the person attesting is not written under the signatures. Under the signature of the authority attesting those affidavits we find only the date and another small initials. The signatures of the magistrate, who tried the case, are on various other papers on the record. A comparison of the admitted signatures of the magistrate with the signatures on affidavits under the word "attested" clearly shows that the affidavits were attested by that very magistrate. The small initials under the date appear to be of the reader or other official of the magistrates Court who wrote the word attested. Some of the affidavits filed by Wahid and Zahid (second patty) appear to have been taken before a special magistrate. The view taken by the Sessions Judge is that the High Court has not appointed any commissioner or oath officer before whom an affidavit which is proposed to be filed before a magistrate c

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