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Judgment
Anantanarayanan, J.—This revision proceeding by the first respondent in, M. IC. No. 72 of 1952 before the Sub Divisional Magistrate,
Viliupuram will have to be allowed on the short point that the learned Magistrate, in deciding that question of dispute concerning user of immovable
property u/s 147 Cri. (P. C. has acted upon the evidence of affidavits, which does not appear to be warranted by me terms of the section. The
learned Magistrate apparently thought, upon the analogy in the specific provision in Section 145(1) Cri. P. C, and the employment of the words
and the provisions of Section 145 shall; as far as may be, be applicable"" in Section 147 (1-A) Cri. P. C, that he could receive affidavit evidence
even in proceedings under the tenor section. The very point came up before a single Judge of the Patna High Court in Manickchand v.
unubaneswar, flm 1961 Pat 278. The learned Judge pointed out that Sub-section (1) of Section 145 makes specific provision that the parties
should be called upon to adduce evidence by affidavits while Sub-section (1-A) of Section 147 is lit very different terms that the magistrate shall
receive all such evidence as may be produced by the respective parties. The learned Judge then proceeded to express his view that the Magistrate
has no jurisdiction in that light of the circumscribed scope of Section 147(1--A) contrasted to Section 145 Cri. P. C. to can upon parties to file
affidavits in a proceeding u/s 147 Cri. P. C. or to accept and act upon such affidavit evidence. It appears to me that this view of the respective
scope of the two sections is justified, for, had the Legislature intended that even in proceedings u/s 147 Cri. P. C. affidavit evidence could be
competently received, the necessary words would have been introduced in Section 147(1-A) Cri. P. C. which is not the case.
Under the circumstances, since the Magistrate'' has received and acted upon evidence, which could not be legally received, within the scope of
the proceeding before him, I am constrained to permit the revision proceeding to quash the order of the learned Magistrate, and to remit the
proceeding for further disposal according to law. The learned Magistrate must now hear the evidence adduced by ins parties and not affidavit
evidence and act according to the tenor of Section 147 Cri. P.C.