MAHENDRA BHUSHAN SHARMA, J. - (1.) THIS revision, arises out of proceedings Under Section 145 of the Criminal Procedure Code in the following circumstances. The petitioners here in filed application Under Section 145 Cr. PC in the court of the Executive Magistrate, Nagaur against Mohanlal the non -petitioner here in. The case was registered as Criminal case No. 21 of 1976. The learned Magistrate made an enquiry into the matter so far as the sole possession of the subject of dispute is concerned. Under his order dated 4 -3 -1981 the learned Magistrate allowed the application and came to a finding prior to the date of the application was filed the petitioner here in was in possession of the subject in dispute. He declared the possession of the petitioner and directed the non -petitioner Mohan Lal not to interfere in the possession of the petitioners. A revision petition was filed by Mohan Lal against the aforesaid judgment of the learned Magistrate before the Additional Sessions Judge, Nagaur and along with the revision petition a certified copy of application allegedly moved by Rameshwar Under Order 21, Rule 100 CPC was filed where in Rameshwar is said to have filed objections that he has been dispossessed by Mohan Lal and who was entitled to possession of the property and, therefore, he should be put back in possession of the same. The learned Additional Sessions Judge placing reliance on the aforesaid application of Rameshwar without discussing the other evidence which have been produced on behalf of the parties during the course of enquiry Under Sub -section (4) of Section 145 Cr. PC allowed the revision petition, set aside the order of the learned Magistrate and consequent the application Under Section 145 Cr. PC was dismissed.
(2.) I have heard learned Counsel for the parties. The contention of the learned advocate for the petitioners here in is that the certified copy of the application said to have been moved by Rameshwar Under Order 21, Rule 100 CPC in the court was not an admitted document. He further contends that this certified copy was not filed before the learned Magistrate and it was only filed in the revision and no right of rebuttal was given to his clients. According to him there is no provision contained in the Cr. PC conferring a right on any party during the course of revision but assuming that the court has such inherent powers, the same could have been exercised only after notice to the other side and after giving a right of rebuttal to that side. During the course of proceedings Under Section 145 Cr. PC evidence was recorded on behalf of both the parties in respect of factual and actual possession of the subject of dispute on the date of the preliminary order and within two months prior to it. The learned Additional Sessions Judge has not cared to discuss that evidence and only on a copy of the application said to have been filed by Rameshwar in proceedings Under Order 21, Rule 100 CPC he allowed the revision petition. Such a course adopted by him cannot be said to be warranted by law. The learned Magistrate has adverted to effect that in execution of the decree against Rameshwar the subject of dispute, a house was sold and a sale certificate was issued in favour of Mohan Lal. But he held that in the absence of material, it cannot be said that possession has been delivered in those proceedings Under Order 21, Rule 100 CPC to Mohan Lal. It is well known that in proceedings Under Section 145 Cr. PC the only dispute is regard to actual possession and on the merits the claims of the parties are not to be looked into. A bare look to Sub -section (4) of Section 145 Cr. PC will show that the Magistrate has to avoid reference to the merits or the claims of any of the parties to a right to possess the subject of dispute and has to confine himself as to which of the parties was in actual physical possession of the subject of dispute on the date of the preliminary order or within two months prior to it. Thus the learned Additional Sessions Judge should not have taken into consideration an application of Rameshwar said to have been made Under Order 21, Rule 100 CPC without giving a right of rebuttal to the non -petitioners. He must have discussed the other evidence brought on record in respect of actual possession. He has not discussed the same.
(3.) IN the result I hereby allow the revision petition, set aside the judgment of the learned Additional Sessions Judge Nagpur dated 2 -3 -1983 and restore that of the Executive Magistrate, Nagaur dated 4 -3 -1981. I send back the case to the learned Additional Sessions Judge, Nagaur with the direction to re -register the revision to its original number and give opportunity to file rebuttal, if any, to the application Under Order 21, Rule 100 CPC and thereafter discussing the entire evidence on record decide the matter afresh in accordance with law.;