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Judgment
Miller, J.—What the Magistrate has to do under Chapter XII of the Code of Criminal Procedure is to decide which of the parties was in
actual possession at the date of his preliminary order, and this he has to decide without reference to the merits of the claims of any of the parties to
aright to possess the subject of dispute, I do not doubt therefore that the Magistrate may, if necessary, take and consider evidence of title to enable
him to decide the question of actual possession, but proof of title is not proof of actual possession, and here the Magistrate, though he says ha
admits evidence of title to ""supplement"" evidence of user, still does not say that he uses it to enable him to decide on which side the truth as to user
lies. Ota the other band, he finds that the evidence does not establish exclusive possession by either party; and that both parties have been from
time to time using the land; and he uses the evidence of title to supplement this evidence in this sense that he takes the User of the one party and the
title to be, in some way which I do not understand, more ""actual"" possession than the user of the other party. It seems to me that this is to decide
the case with reference to the claims of the parties to a right to possess the subject of dispute, and that is what the Coda forbids [vide in the matter
of the petition of Kali Kristo Thakur v. Golam Ali Chowdry ILR (1881) Calc. 46 and Ram Dyal Mahton v. Kedarnath (1907) CRI.L.J. 182]. I
must set aside the Magistrate''s order and direct him to make a fresh order according to law either u/s 145 or Section 146, Criminal Procedure
Code, as the case may be.