ORDER
Mufti Baha-Ud-Din Farooqi, Actg., C.J.
1. The dispute in this case relates to land measuring 7 kanals and 12 marlas comprised in Khasra NO. 753= eight marlas, Khasra NO: 763=2 kanals and 2 marlas, 809=3 kls. and 3 marlas, 812/min 1 kanal and 14 marlas and Khasra NO. 958=5 marlas situated in village Dadsar Tehsil Tral. The disputed land was the subject of proceedings under Section 145 Cr. P.C. in the court of Executive Magistrate (A.C.R.) Pulwama. The disputants were respondent No. 1 (hereinafter called the 'Ist party') on one side, and the petitioners and respondents 2 to 4, (hereinafter called 'the second party') on the other. The case of the first party was that the disputed land was in the personal cultivation of his brother, Ghulam Hassan Sheikh and that without any right and title, the second party was making repeated assaults in order to oust him forcibly from the land. On the other hand, the case of the second party was that the land was in the personal cultivation of Mst. Shahmali since long and that Ghulam Hassan Sheikh had no right or title over it. By his order dated 19-11-1979, the learned Magistrate held that the disputed land was in the personal cultivation of Ghulam Hassan Sheikh and not Mst. Shahmali. On this finding, he declared Ghulam Hassan Sheikh to be entitled to the possession and forbade interference with the same. Aggrieved by the order, the second party went in revision to the District Magistrate Pulwama but could not succeed. The second party has now come up in further revision to this Court.
2. Appearing for the petitioner, Mr. Qayoom urged the following points:
That the preliminary order is defective and does not conform to the requirements of law and consequently the subsequent proceedings including the final order are without jurisdiction.
2. that the learned Magistrate has not considered the affidavits and documents produced by the second party and as such the order is not sustainable in law;
3. that the learned Magistrate has nowhere found that Ghulam Hassan Sheikh was in actual physical possession on the date of making of the preliminary order and as such the order is bad in law;
4. that, in any event, the possession of Hassan Sheikh was permissive and that he was holding the same on behalf of Mst. Saja and Mst. Shahmali and as, such, the proceedings under Section 145 Cr.P.C. are incompetent.
3. Dwelling on the first point, learned Counsel contended that the Magistrate gets power and jurisdiction to initiate proceedings under Section 145, Cri. P.C. provided that he is satisfied about two things. Firstly that a dispute exists as regards possession of land or water within his jurisdiction, Secondly that such dispute is fraught with danger of breach of peace. The trial Magistrate has recorded his satisfaction on the second point but not on the first point, and as such the proceedings are stillborn. In order to appreciate this contention it will be necessary to give a few facts. The preliminary order was recorded on 22-9-1979. The learned Magistrate has passed three separate orders on that day, one in the main application which is a composite order under Sub-sections (1) and (4) of Section 145 Cr. P.C. and, the other two orders on the related applications.
There is however no dispute that the proceedings are founded upon the order which, I have said, is a composite order under Sub-sections (1) and (4) of Section 145 Cr. P.C. It is a fairly long order. Pre-faced to the order are the alleged facts. Then comes the consideration part. That part is sub-divided into two parts. The first part directs notice to the other party and the second part directs ad-interim attachment of the disputed land. The direction as regards notice follows reference to the available material and satisfaction of the Magistrate thereupon that there is imminent danger of breach of peace on spot. The direction as regards ad-interim attachment follows the statement that the court is not only satisfied that there is breach of peace on spot but also that such danger of breach of peace has arisen from a dispute as regards the possession of land in question between the parties. The argument of the learned Counsel for the second party is that the first part of the order which constitutes the preliminary order under Sub-section (1) of Section 145 Cri. P.C. does not include satisfaction of the Magistrate on the point that a dispute existed between the parties as regards the possession of the land in question and as such the order is defective, so much, that subsequent proceedings are vitiated and without jurisdiction. I am unable to accept this argument. There can be no dispute with the principle that it is the duty of the Magistrate to record in writing in clear terms that a dispute exists as regards land and water within his jurisdiction and that the dispute is such as is likely to cause breach of peace and the grounds of his being so satisfied. But if the order is a composite order under Sub-sections (1) and (4) and the Magistrate records his satisfaction on both these points at one place or the other, the proceedings cannot be said to be without jurisdiction. For, in any such case the defect can be said to be more of form than of substance, and such defect cannot go down to the root of the matter and render the proceedings invalid. The first point fails.
4. Dwelling on the second point, learned Counsel contended that the word 'perused' used in Sub-section (4) of Section 145 implies detailed and critical examination and accordingly the magistrate was required to apply his mind to the affidavits one by one and give reasons for accepting or rejecting the same. He has not done so and not even considered the judgment passed by the Assistant Commissioner Anantnag on 9-6-1978, filed by the second party. He contended that the order was therefore Illegal and without jurisdiction. For this he placed reliance on the reported decisions in Mt. Sarfi v. Mt. Sugo : AIR1962Pat253 and Murali Patel v. Purusottam Bhati : AIR1965Ori208 , as also on the unreported decisions of this Court in Mohammad Sidiq v. Mohammad Sultan Mandoo Cr. Revn. No. 35 of 1973, decided on 9-7-1974 and Pushkar Nath v. Ghulam Mohammad Cr. Reference No. 3 of 1979 decided on 3-8-1979.
The principle of these decisions is that the Magistrate must go through the affidavits one by one; apply his mind to each one of them and, on the facts and, circumstances of the case and on the documentary evidence on record, say if it can be accepted or rejected. If, however, there exists one ground for accepting or rejecting an affidavit and that ground equally holds good in case of other affidavits also, then certainly in that case the Magistrate can give that one ground for accepting or rejecting the affidavits of more than one person and he can take them all in one lump and consider them together. It should appear from the order that the Magistrate has applied his mind and considered the affidavits. The crucial question is whether the order in the present case satisfies the test. The material portion of the order reads thus:
I have gone through the record of the case closely, vide AIR 1958 Punj 47 : 1958 Cri LJ 215, the Mgistrate acting under Section 145 Cr. P.C. has not to go into the merits or demerits of the right or title but should only pass final orders as to the actual passession which has been defined by the Hon'ble High Court of Kerala vide AIR 1964 Ker 308 at p. 309 : 1964 (2) Cri LJ 682. It means that possession of the person who has foot on the land, who is ploughing it, sowing and growing crops in it entirely irrespective of whether he had any right or title to possess it. From the Intikhab Girdawari and the affidavits it is clear that Hassan Sheikh has foot on the land who has sown seeds and grown crops and whether he had any right on this land to possess the same is not to be determined in proceedings under Section 145 Cr. P.C.
5. Learned Counsel took me through the affidavits filed by the parties. The affidavits filed on each side are of common pattern. The deponents on the side of the first party generally state that the land in dispute is in personal cultivation of Hassan Sheikh. On the other hand the deponents of the affidavits filed on behalf of the second party generally state that the possession belongs to Mst. Shahmali. The Magistrate has related them to the entries in the Girdawari and concluded that Hassan Sheikh has foot on the land who has sown seeds and grown the crops over it. The judgment is no doubt cryptic but the inference is irresis-table that the Magistrate has compared the two sets of affidavits with the entries in the Girdawari and preferred the affidavits filed on behalf of the 1st party which agree with the entries in the Girdawari. The entries in the Girdawari are undisputedly in favour of the first party and indicate that Hassan Sheikh is in actual possession of the disputed land. It is true that the Magistrate has acted miserly and chosen to be much too brief, but that does not derogate from the fact that he has applied his mind to the affidavits, compared the rival versions with the entries in the Girdawari and drawn his own conclusions in the matter.
In the circumstances it is difficult for me to agree with the learned Counsel that the Magistrate has not considered the affidavits. So far as the judgment dated 9-6-1978, passed by the Assistant Commissioner (Revenue) is concerned, it does not have any bearing on the controversy in the present case. That was an application under Section 56 of the Tenancy Act filed by Hassan Sheikh in order to stop interference with his possession by Hassan Mirkh and several others not including Mst. Shahmali. The Assistant Commissioner held that in the absence of any relationship of landlord and tenant between the parties, the application was not cognizable by a revenue court. The petitioner's remedy lay in a civil/criminal court. Incidentally, the Assistant Commissioner made the following observations:
Almost in his all the applications, as well as in his statements and objections filed by Hassan Sheikh it has been admitted that the ownership of the land vests with Mst. Shahmali and others with whom no controversy or dispute is stated to exist which would have necessitated to plead them as a party to the case. It has been made to understand that Mst. Saja, Mst. Sara and Mst. Shahmali have initially been putting up jointly with Hassan Damad and Mst. Shahmali has been minor daughter during those days. In the capacity of the husband of Mst. Sara and son-in-law of Mst. Saja the applicant Hassan Sheikh seems to be part and parcel of this family. In such circumstances the cultivation through Hassan would mean the personal cultivation of Mst. Saja as well as that of Mst. Sara and tenancy benefits as claimed by Hassan for the lands in question does not seem proper. So far Mst. Shahmali is concerned she is the daughter of Mst. Saja and sister of Mst. Sara and in the eye of law the possession of one co-heir can be considered the possession of all co-heirs particularly those who are minors. So as such I am of the opinion that in view of the relationship and reasons explained above the cultivation even if through the applicant Hassan Sheikh would have meant nothing but the personal cultivation of the owners.
6. The contention of the learned Counsel is that the learned Magistrate has not taken into consideration those observations. These observations are in the nature of obiter dicta. Leave that alone, they have obviously no bearing on the controversy involved in the present case which, on the pleadings of the parties, raised the limited question whether it was Hassan Sheikh or Shahmali who was in actual physical possession of the disputed land on the relevant day and not the question whether there was any community of title between them. The judgment was therefore of no consequence in the present controversy. Its non-consideration would not vitiate the order. For, the principle is well settled that the non-consideration of non-vital evidence would not constitute an error of jurisdiction. The second point too fails.
7. Coming to the third point it must be conceded that the Magistrate has nowhere specifically found that the second party was in possession on the date of the preliminary order but it was not necessary for him to do so in the present case. For, it was nowhere pleaded in the pleadings that there was any possession or dispossession within two months preceding the date of the preliminary order or even at any time prior or subsequent thereto. The parties claimed uninterrupted possession to the exclusion of one another. In the circumstances the finding of the learned Magistrate that Ghulam Hassan Sheikh has foot on the land and has been ploughing the land and growing crops over it must be construed as a finding that the first party was in actual physical possession on the date of the preliminary order. The third point too fails.
8. This brings me to the last point. If was nowhere pleaded by the second party in their objections to the application under Section 145 Cr. P.C. that Hassan Sheikh was holding the land on behalf of Mst. Shahmali and Mst. Saja. On the other hand, their defence was that Shahmali and not Hassan Sheikh was in actual physical possession of the land. Accordingly if the Girdawari shows that Hassan Sheikh is holding possession on behalf of Mst. Shahmali and Mst. Saja the second party cannot make it a ground for the contention that the possession is permissive and as such proceedings under Section 145 Cr. P.C. are incompetent. For, a party cannot be allowed to set up at the trial, much less, at the revisional stage a case which, though disclosed in the evidence, has not been set out in the pleadings. In this View it will not be necessary for me to consider the question whether proceedings under Section 145 Cr. P.C. would be competent where the possession is permissive. I leave that question open. The last point also fails.
9. The result therefore is that this revision fails. It is dismissed accordingly.
10. As the main revision petition has been dismissed and the order of the trial court has been upheld, the trial court will restore possession of the disputed land to Ghulam Hassan Sheikh and also deliver to him the crops collected from the land during the pendency of the proceedings after making allowance for the expenses incurred by the Superdar as also for his fee which shall be determined by the trial court. The applications are disposed of accordingly.