SHIVABHAI CHHOTABHAI v. RAVJIBHAI MOTIBHAI — 1964 DIGILAW 88 (GUJ)

N. M. MIABHOY, J. ( 1 ) THIS is a report submitted under sec. 438a Criminal Procedure Code by the District Magistrate Broach recommending that the order dated 27th July 1963 passed by the Sub-Divisional Magistrate Rajpipla in Criminal Case No. 23 of 1963 should be set aside. The report raises an important question of law the question being whether the law requires that a decision recorded by a Magistrate under sub-section (4) of sec. 145 Criminal Procedure Code should or should not be supported by reasons and if it is required to be so supported whether the order is bad on account of the absence of such reasons. Before setting out the rival contentions of the parties it will be convenient to set out briefly the facts which has led up to the report. One Chaturbhai Chhotabhai of the village Umarva of Nandod Taluka District Broach died on 11th December 1962 owning lands situated at villages Umarva and Dhundha within the limits of Nandod Taluka. It is an admitted position that Chaturbhai did not leave behind him surviving any widow or children. Informant Shivabhai Chhotabhai is the natural brother of the deceased Chaturbhai. However according to the opponents who claim to be the cousins and the legal heirs of Chhotabhai Shivabhai was adopted in another family and that therefore he was not Chhotabhais legal heir. Shivabhai resides in the village Surasamor District Baroda. He made an application on 1st June 1963 to the Sub-Divisional Magistrate Rajpipla requesting that officer to attach the lands of Chhotabhai and to entrust them to a receiver alleging that there was a dispute between him and opponents in relation to the possession of the lands which dispute was likely to result in a breach of the peace. On this application being made the Sub-Divisional Magistrate passed a preliminary order under sec. 145 sub-sec. (1) in which he recited that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the lands of Chaturbhai on the grounds mentioned in the information lodged by Shivabhai and called upon the parties concerned to put in written statements of their respective claims as regards the factum of actual possession of Chaturbhais lands and further required them to put in such documents or to adduce evidence by putting affidavits of such persons as they relied upon in support of their claims. The notice was made returnable on 27th of June 1963. On that day opponents filed a written-statement some documents and two affidavits. Informant Shivabhai did not file any written statement or affidavits on 8th July 1963 and the case was adjourned to 20th of July 1963. On that day opponents filed two more affidavits and informant Shivabhai filed his own affidavit and produced some documents. The case was then adjourned to 27th July 1963. The Sub-Divisional Magistrate heard the parties on that day and then passed the impugned order. The order is drawn up in Form No. XXII prescribed by Schedule V of the Code of Criminal Procedure 1898 Amongst other things the order states that the Magistrate decides that opponents were in possession of the lands in dispute. I may say that the above order is not challenged on the ground that there was no formal decision recorded by the Sub-Divisional Magistrate before the impugned order was drawn up. It is assumed that there was such a decision. Informant Shivabhai was aggrieved by the aforesaid order and went in revision to the District Magistrate. The contention of Shivabhai which appealed to the District Magistrate was that the decision recorded by the Sub-Divisional Magistrate was bad in law in the absence of reasons for reaching the decision. In arriving at this conclusion the District Magis trate relied upon the case of Bansi and others v. Hari Singh and others reported in A. I. R. 1956 Allahabad 297. It is on the authority of this case that the present report or reference has been made by the District Magistrate. ( 2 ) MR. Sompura the learned Assistant Government Pleader and Mr. C. C. Patel who appears for informant Shivabhai support the reference. Mr. M. M. Patel who appears for the original opponents opposes the reference. ( 3 ) BEFORE I set out the rival contentions of the parties it will be convenient to summarize the the provisions of sections 145 to 147 which are three out of the four sections which occur in Chapter XII of the Code of Criminal Procedure 1898 The Chapter is headed Disputes as to Immoveable Property. ( 3 ) BEFORE I set out the rival contentions of the parties it will be convenient to summarize the the provisions of sections 145 to 147 which are three out of the four sections which occur in Chapter XII of the Code of Criminal Procedure 1898 The Chapter is headed Disputes as to Immoveable Property. Section 145 enacts that were a Magistrate of the type mentioned therein is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water situated within his jurisdiction he shall make a preliminary order setting out the grounds why he was so satisfied and requiring the parties to attend his Court and to submit their statements documents or to produce affidavits in support of their claims as regards the factum of actual possession of the subject-matter in dispute. Sub-sec. (2) of sec. 145 defines expression land or water. Sub-sec. (3) prescribes the procedure for service of notice. Then cotes sub-section (4 ). This sub-section requires to be read in full as it is on the construction of this sub-section that ultimately the point of law raised in this reference falls to be decided. That sub-section (4) is as follows:-"the Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute peruse the statements documents and affidavits if any to put in hear the parties and conclude the inquiry as far as may be practicable within a period of two months from the date of the appearance of the parties before him and if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:" ( 4 ) THEN there are three provisos to this sub-section which it is not necessary to reproduce in full. The first proviso empowers the Magistrate to summon and examine any person whose affidavit has been put in. The second proviso provides that if a party was forcibly and wrongfully dispossessed within two months next before the date of the preliminary order he shall be deemed to be in possession on the date of the preliminary order. The first proviso empowers the Magistrate to summon and examine any person whose affidavit has been put in. The second proviso provides that if a party was forcibly and wrongfully dispossessed within two months next before the date of the preliminary order he shall be deemed to be in possession on the date of the preliminary order. Sub-section (5) enacts that it is open to any of the parties to show that in fact there was no dispute of the kind mentioned in sub-section (1) and that on the Magistrate being so satisfied he shall cancel the preliminary order. Then comes sub-section (6) which may also be read in full as it has a material bearing on the construction of sub-section (4 ). That sub-section reads as follows:-"if the Magistrate decides that one of the parties was or should under the second proviso to sub-sec. (4) be treated as being in such possession of the said subject he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed. " ( 5 ) FROM the aforesaid provisions it is quit clear that section 145 enacts that after the preliminary order as aforesaid has been made the Magistrate concerned shall proceed to decide the question as to which of the rival claimants was in actual and physical possession of the land in dispute either on the date of the preliminary order or on a date within two months before that date provided in the latter case the Magistrate shall also further decide as to whether the party was forcibly and wrongfully dispossessed within the period aforesaid. The section also enacts that if the Magistrate finds that there was no such dispute as contemplated by the section in existence then he shall cancel the order. The section further provides that if the Magistrate does come to the conclusion that one or the other of the rival claimants was in possession at the relevant time then he shall draw up an order as provided for in sub-section (6 ). The section further provides that if the Magistrate does come to the conclusion that one or the other of the rival claimants was in possession at the relevant time then he shall draw up an order as provided for in sub-section (6 ). That order will declare that the party so found in possession is entitled to possession thereof until evicted therefrom in due course of law. The section also requires that the order shall forbid all disturbance of such possession until such eviction. The order also may restore a party forcibly and wrongfully dispossessed of land. Section 146 deals with the same subject as section 145 but provides the procedure to be followed in case the Magistrate comes to the conclusion that none of the claimants was in possession or if he is unable to decide as to which of the parties was in such possession. Section 146 provides that in any one of the aforesaid two contingencies the Magistrate shall draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction. That Court is enjoined to decide the same question which the Magistrate is enjoined to decide under section 145. The Civil Court is enjoined to peruse the evidence already on record and is given the power of recording further evidence as may be adduced by the parties. It is further enjoined to consider the effect of all such evidence and after hearing the parties to decide the question as aforesaid. The Civil Court is further enjoined to transmit that finding to the Magistrate concerned and the latter is then enjoined to dispose off the proceeding in conformity with the decision of the Civil Court. Section 147 deals with a dispute likely to cause a breach of peace regarding rights of user of any land or water. It directs that on the Magistrate concerned being satisfied of the existence of any such dispute he shall make a preliminary order of the same kind which he is empowered to make under section 145. The relevant section is as follows:-" (1a ). It directs that on the Magistrate concerned being satisfied of the existence of any such dispute he shall make a preliminary order of the same kind which he is empowered to make under section 145. The relevant section is as follows:-" (1a ). The Magistrate shall then peruse the statements so put in hear the parties receive all such evidence as may be produced by them respectively consider the effect of such evidence take such further evidence if any as he thinks necessary and if possible decide whether such right exists and the provisions of sec. 145 shall as far as may be be applicable in the case of such inquiry. " ( 6 ) THEN sub-section (2) provides that if it appears to the Magistrate concerned that the right claimed exists. he may make an order prohibiting any interference with the exercise of such right. Sub-section (3) provides that if the Magistrate is satisfied that such right does not exist he may make an order prohibiting any exercise of the alleged right. Sub-sec. (4) specifically states that the order passed by the Magistrate will be subject to any subsequent decision of a Civil Court of competent jurisdiction. ( 7 ) FROM the aforesaid summary of the three sections it is quite clear that there are the following stages in a proceeding started either under section 145 or section 147. They are (i) the stage when a preliminary order is made; (ii) the stage when the Magistrate receives statements affidavits and documents; (iii) the stage when in an enquiry under section 145 the Magistrate peruses the statements documents and affidavits hears the parties and decides the questions which are set out in the three sections. There is some difference as regards the procedure to be adopted at this stage in an enquiry under section 147 which need not be noticed at the present stage. There is some difference as regards the procedure to be adopted at this stage in an enquiry under section 147 which need not be noticed at the present stage. (iv) The stage when the Magistrate concerned reaches a decision on the points in hand; (v) the stage when the Magistrate draws up a formal order when he is satisfied that one of the claimants is in possession or is or is not in enjoyment of the right in question; (vi) in the case of a land dispute if the Magistrate finds that none of the parties is in possession or that he is unable to decide which party is in possession he is entitled to make a reference to a Civil Court. ( 8 ) FROM the aforesaid summary it is quite clear that though a Magistrate is expressly required to state his grounds when making the preliminary order under sub-section (1) of section 145 he is not required by sub-section (4) which enjoins on him to reach a decision as regards the factum of actual possession to give reasons for reaching his decision. This position is admitted by the learned Advocates on both sides. The contention of the supporters of the reference is that though sub-sec. (4) of section 145 does not in terms enjoin the recording of any reasons for the decision such a requirement is implicit in the language used in the section. The opponent of the reference on the other hand relies upon the distinction between the requirements of a judgment and that of an order. He relies upon section 367 of the Criminal Procedure Code which inter alia provides what the contents of a judgment shall be. That section says that a judgment shall contain the point or points for determination the decision thereon and the reason for the decision. The opponent of the reference relies upon the fact that the aforesaid part of section 367 enacts in express terms that the decision recorded in a judgment shall be supported by reasons. He also relies upon the absence of any similar provision regarding an order. In addition to this the opponent of the reference further contends that if the language of sub-sec. He also relies upon the absence of any similar provision regarding an order. In addition to this the opponent of the reference further contends that if the language of sub-sec. (4) if contrasted with the language of sub-section (1) of section 145 it is quite clear that whereas the Legislature expressly enjoins that the preliminary order shall be supported by reasons the Legislature has been deliberately silent as regards the decision which is to be reached under sub-section (4 ). The proponents of the reference contend that even if there be substance in the aforesaid contentions of the opponent of the reference in any case this Court must hold on the basis of the fact that a decision under sub-section (4) aforesaid is amenable to the revisional jurisdiction of the High Court that the Legislature intended that the decision must be supported by the reasons as otherwise the revisional Court will not be able to perform the duty cast upon it by sec. 438a under which the reference is made. ( 9 ) THE contentions which have been raised by the rival parties are the very same contentions which were raised considered and decided by Their Lordships of the Allahabad High Court in the case Bansi and others v. Hari Singh and others already referred to and on the basis of which the present reference is made. It is the decision of a Division Court. The principal judgment was delivered by James J. That judgment shows that there is a conflict of judicial authority on the aforesaid subject in hand and that the weight of the judicial authority is in favour of the proposition that a decision under sub-section (4) of section 145 must be supported by reasons. ( 10 ) BEFORE I discuss the various submissions made on the aforesaid subject it will be useful to mention briefly the main object intended to be achieved by the aforesaid three sections in Chapter XII. There is no doubt whatsoever that the object which the Legislature intends to secure by enacting those provisions is to preserve and maintain law and order and to prevent a disturbance of the public peace. It is true that the provisions can be brought into play only when peace is threatened on account of the existence of a land dispute. There is no doubt whatsoever that the object which the Legislature intends to secure by enacting those provisions is to preserve and maintain law and order and to prevent a disturbance of the public peace. It is true that the provisions can be brought into play only when peace is threatened on account of the existence of a land dispute. But the existence of a land dispute though relevant by itself does not justify the invocation of the powers conferred upon the Magistrate concerned under those sections. This is quite clear from a number of provisions contained in the Chapter. Firstly if an order is to be made under either section 145 or section 147 the condition precedent is that there must be a likelihood of a breach of peace being committed. It is on the satisfaction of this vital ingredient that a preliminary order under section 145 or section 147 is to be made. That this is a vital point is also made clear in section 145 wherein it is stated that the Magistrate shall cancel the order if it is shown to him that there was no dispute in existence which was likely to create a breach of peace. The final order which is passed under sub-section (6) of section 145 or under sub-sections (2) and (3) of section 147 is designed to prohibit one of the parties from taking the law into its own hands and from committing a breach of peace. It is true that before making the final order the Magistrate has been enjoined to determine as to which party is in actual possession of the property in dispute or as to whether the right of the type mentioned in section 147 claimed by one or the other party has been established. However the Magistrate is not expected at least in the case of a land dispute to enter into the merits of the right claimed in respect of the land in dispute. The Magistrate is expressly prohibited by sub-section (4) of section 145 from referring to the merits of the claims of any of the parties to a right to possess the subject-matter in dispute. The fact which the Magistrate is called upon to decide is the simple fact of actual and physical possession of the land. Similarly the points which he is required to decide under sec. The fact which the Magistrate is called upon to decide is the simple fact of actual and physical possession of the land. Similarly the points which he is required to decide under sec. 147 are simple regarding the user of land or water. That the Magistrate is not supposed to enter into an elaborate discussion of the ultimate rights involved is also quite clear from the direction given to him under sub-section (4) that he shall decide the factum of actual possession within a period of two months from the date of the appearance of the parties. The Magistrate is not bound to record a finding on the subject of actual possession at any cost. He is directed only to make the best effort he could to do so and if in a land dispute he is unable to reach a decision he is directed to refer that point for determination to a Civil Court and the latter in its turn is directed to conclude the enquiry within three months from the date of the appearance of the parties before it. All these provisions are designed with a view to obtain a quick and speedy decision on the subject of actual possession or user of rights. The decision on the questions of fact recorded by the Magistrate or by the Civil Court is not a final decision. It is subject to the ultimate decision which may be recorded by a Court of competent jurisdiction. The sections have been designed to prevent a breach of peace during the pendency of the dispute and to secure that after an order is passed by the Magistrate the aggrieved party shall have recourse to the due course of law in enforcement of the rights which he claims over the land or the right to the user thereof. It is in the light of the aforesaid object which the Legislature has in view that the question has got to be considered whether a Magistrate is or is not expected to give reasons in support of his decision. ( 11 ) TURNING now to sub-section (4) of section 145 what the proponents of the reference emphasise is the use of the word decide in that section. It is contended that the duty to give reasons is implicit in the use of this word specially when that word is used in the context of a quasi-judicial enquiry. ( 11 ) TURNING now to sub-section (4) of section 145 what the proponents of the reference emphasise is the use of the word decide in that section. It is contended that the duty to give reasons is implicit in the use of this word specially when that word is used in the context of a quasi-judicial enquiry. In the concurrent judgment delivered by Mukerji J. in Bansis case this aspect of the case has been specially emphasised. The argument is that it is incomprehensible that a judicial or a quasi-judicial decision could be given without supporting it by reasons. I am unable to agree with this general proposition. In the first instance if this were so then it is hardy probable that in section 367 Criminal Procedure Code 1898 the Legislature would have enjoined that the decision embodied in a judgment should be supported by reasons. The use of the word decide or decision in that section would have been enough. In the second instance it is hardly probable that the Legislature would have expressly directed that the grounds for the satisfaction that a dispute was in existence should be given by the Magistrate when making the preliminary order and the same should have been found to be absent in sub-section (4 ). In any case law is aware of a number of cases and situations in which decisions recorded by judicial officers are not supported by reasons. For example when an appellate Court dismisses an appeal summarily it is well known that it does not ordinarily give reasons in support of the same. In the case of the City Civil Court and the High Court exercising jurisdiction on the original and appellate side usually no reasons are given in support of interim orders. In the case of decisions of Small Causes Courts also the law does not expect any reasons to be given by that Court. Having regard to this state of the law in my judgment it cannot be inferred merely from the user of the word decide in sub-section (4) aforesaid that the Legislature necessarily implied that reasons should be adduced in support of the decision. In a Patna case Mt. Sarfi v. M. Sugo and others reported in A. I. R. 1962 Patna 253 the conclusion that reasons must be given was deduced from the use of the word peruse in sub-section (4 ). In a Patna case Mt. Sarfi v. M. Sugo and others reported in A. I. R. 1962 Patna 253 the conclusion that reasons must be given was deduced from the use of the word peruse in sub-section (4 ). It is stated therein that that word means examine critically and that that must result in a duty to give reasons. With great respect I am unable to agree with the conclusion that this necessarily follows from the use of the word peruse. In Bansis case the aforesaid conclusion has been arrived at also on the ground of the user of the expression consider the effect of the evidence in sub-section (4) as it then stood when the decision was given. However the present sub-section (4) has been substituted by section 18 (b) of the Amending Act 26 of 1955 for the original sub-section (4 ). Under the old law the parties were allowed to adduce further evidence the Magistrate was given the power of examining witnesses himself and was required to consider the effect of the evidence adduced before him. Under the substituted sub-section (4) the parties are not entitled to adduce oral evidence except evidence by way of affidavits. The Magistrate is not entitled to examine further evidence except that he has been given the power of summoning and examining the person who has already made an affidavit and the words consider the effect of the evidence have been omitted. It is significant that though this is so that expression has been retained in section 146 in that part of the section which directs the Civil Court to decide the same question and in the case of a dispute under section 147 the same expression has been retained. Therefore whatever may be the inference which may be drawn from the use of the aforesaid expression consider the effect of the evidence in relation to the duties imposed upon the Civil Court and the Magistrate exercising power under section 147 it is quite clear that the aforesaid expression cannot now be relied upon in support of the argument that a Magistrate exercising duty under sub-section (4) of section 145 shall support his decision by reasons. Even if one were to proceed on the basis that the deletion of the aforesaid expression is not intended to give liberty to the Magistrate concerned to decide questions without considering the effect of all the materials before him and that inspite of the change in the language of sub-section (4) the Magistrate is still enjoined to consider the effect of the materials before him in my judgment it is difficult to agree that by the use of the aforesaid expression the Legislature intended that the decision should be supported by reasons. When a person is told to take into consideration the effect of evidence it cannot be said that the person is asked to give reasons. All that is implied is that the person shall undergo the process of considering the evidence and shall determine the effect of that evidence before giving his decision. ( 12 ) JAMES J. in Bansis case has made a reference to the various steps which the Magistrate is required to take before his decision. The learned Judge has described these steps as an elaborate procedure and on the basis thereof concluded that it does not appeal to ones reason or common sense that no reasons on his (Magistrates) part are necessary or that through a purely mental act he can decide as to which of the parties was in possession or that none was in possession or that possession was indeterminate. I am unable to agree with the conclusion that any such inference necessarily follows from the procedure prescribed by section 145 or 146. On the contrary in my judgment if the aforesaid argument were to be adopted as a good reason then one would be rendering decisions in a large number of legal proceedings some of which I have mentioned above as being unreasonable or opposed to common sense. ( 13 ) THE principal question which was raised in Bansis case was whether the decision of a Magistrate under sub-section (4) aforesaid which does not give any reasons can or cannot be upheld because the learned Magistrate had drawn up the order in Form XXII of Schedule V of the Code of Criminal Procedure 1898 I am in agreement with the view expressed in Bansis case that this is not so. This would not be so because the two things viz. This would not be so because the two things viz. a decision under sub-section (4) and an order aforesaid are two different things. The decision recorded under sub-sec. (4) is a decision relating to the actual and physical possession of the land in dispute. That represents the determination of the Magistrate on that subject and the order drawn up in Form XXII of Schedule V is the final order which is required to be drawn up not necessarily to embody the decision but to embody the directions of Magistrate to the parties concerned. Whereas the decision under sub-section (4) only decides the question of actual physical possession the order under sub-section (6) confers a right on the party concerned to retain or obtain possession and forbids the opposite party from disturbing that possession without taking steps in due course of law. But the conclusion that the decision and the order are two different things can hardly be made a ground for holding that the decision must be supported by reasons. ( 14 ) IN my judgment no positive conclusion can be arrived at on the aforesaid subject on any of the grounds so far noticed by me. As against this in may judgment there is a number of reasons some of which I have already mentioned which indicate that probably the Legislature did not intend to burden the Magistrate by calling upon him to give reasons in support of his decision. In the first instance having regarded to the fact that there is an express provision in sub-section (1) for giving reasons for making the preliminary order and that there is no such express provision in sub-section (4) for recording the decision the maxim expressio unius est exclusio alterius can be applied in the construction of sub-section (4 ). Moreover there is no doubt whatsoever that the decision recorded under sub-section (4) is neither a judgment within the meaning of section 367 Criminal Procedure Code nor is it deemed to be a judgment under that section as sub-sec. (6) of sec. 367 does not apply which sub-section enacts that only orders under section 118 or section 123 sub-section (3) shall be deemed to be a judgment. Therefore there is no doubt that in recording the aforesaid decision the Magistrate is not required under section 367 to give his reasons. The proceeding before the Magistrate is of a summary nature. 367 does not apply which sub-section enacts that only orders under section 118 or section 123 sub-section (3) shall be deemed to be a judgment. Therefore there is no doubt that in recording the aforesaid decision the Magistrate is not required under section 367 to give his reasons. The proceeding before the Magistrate is of a summary nature. He is expected to record his decision as early and as speedily as possible. The points which are required to be decided are simple points of fact. He is enjoined to record his decision without reference to the merits of the rights involved in the dispute. The decision which he records is not final. The decision can be challenged and got set aside in proper proceedings before a Civil Court of competent jurisdiction. In the case of a land dispute he is not expected to record any oral evidence except that in his discretion he may summon and examine a person whose affidavit is already on record. Having regard to these features of the enquiry which he is required to make the Legislature appears to have deliberately omitted to require him to give reasons in support of the decision arrived at by him. The purpose of the State would be served if the Magistrate makes an order which would prevent one of the parties from disturbing the peace and committing a breach thereof. ( 15 ) HOWEVER the proponents of the reference urge one more ground in support thereof and that is a ground which appears to have appealed quite a large body of judicial opinion including James J. and appears to be the principal ground on which Mukerji J. has concurred with the conclusions arrived at by James J. The ground is that the order drawn up by the Magistrate is amenable to the revisional jurisdiction of the High Court exercisable under section 435 Criminal Procedure Code. In the State of Gujarat the power would be exercisable by the High Court under section 438a of that Code. The argument is that the Legislature must be presumed to have intended the Magistrate to give his reasons because otherwise the High Court will not be able to perform the functions assigned to it for revising the order of the Magistrate. The argument is that the Legislature must be presumed to have intended the Magistrate to give his reasons because otherwise the High Court will not be able to perform the functions assigned to it for revising the order of the Magistrate. In the first instance it is not correct to say so far as the State of Gujarat is concerned that the decision of the Magistrate is liable to be revised by itself. Section 438a makes the order under section 145 revisable by the High Court. The revisional power of the High Court therefore operates on the order made under subsection (6) of section 145 and not upon the decision recorded under subsection (4) of that section. However under section 435 a finding is also revisable by the High Court. But I do not propose to lay much emphasis upon this distinction. It may be that when the High Court is called upon to revise an order recorded under sub-section (6) of section 145 it is also called upon to consider the correctness legality and propriety of the decision recorded under sub-section (4 ). But the argument that because the decision is so revisable a duty must be implied therefrom on the authority recording the decision to give his reasons does not appeal to me. The revisional power of the High Court in my judgment has no relevance to the question as to what the subordinate magistracy has to do. I find no warrant for the proposition that because an order is revisable by a higher Court that therefore the subordinate authority must record his reasons. Almost all the judicial orders in which no reasons are given and which I have enumerated above are also subject to the revisional jurisdiction of the High Court. Nay a further appeal lies to a higher Court in some of these matters. If the aforesaid argument were valid then all those decisions also would be bad on the ground that they are not supported by reasons. Therefore this argument also does not appeal to me. ( 16 ) FOR the aforesaid reasons I have come to the conclusion that it cannot be stated as a matter of law that a decision recorded by a Magistrate under sub-section (4) of section 145 must be held to be contrary to law because it is not supported by reasons. Therefore this argument also does not appeal to me. ( 16 ) FOR the aforesaid reasons I have come to the conclusion that it cannot be stated as a matter of law that a decision recorded by a Magistrate under sub-section (4) of section 145 must be held to be contrary to law because it is not supported by reasons. In my judgment such a decision cannot be stated to be either illegal or incorrect on account of the failure of the Magistrate to record reasons and the same cannot be revised for that particular reason proprio vigore. ( 17 ) HOWEVER that does not mean that the absence of any record of reasons cannot have any repercussions when the same is challenged in a revisional Court. When an order is brought before a revisional Court and that Court is called upon to decide whether the order is proper or correct or not though as I have already stated the order may not be set aside on the ground of illegality the revisional Court is bound to consider the question of the propriety or correctness of the order on well recognized principles. Whilst discharging this duty if the revisional Court finds that on a perusal of the materials on record the failure of the Magistrate to record his reasons impinges upon the propriety or correctness of the decision then the revisional Court may on that account come to the conclusion that the decision in a given case is improper or incorrect and may set it aside on that account. But that will not be done on the ground that the decision is illegal but it will be done on the merits of each case. ( 18 ) UNDER the circumstances before disposing of the reference it is necessary for me to consider the propriety or the correctness of the decision recorded by the Magistrate. In my judgment the order passed by the Magistrate is eminently reasonable and cannot be regarded as either incorrect or improper. The simple question which the Magistrate was called upon to decide was as to who was in possession of the estate of Chaturbhai Chhotabhai. In deciding this question the Magistrate was prohibited from taking into account the rights which each of the parties put forward in support of its case. The simple question which the Magistrate was called upon to decide was as to who was in possession of the estate of Chaturbhai Chhotabhai. In deciding this question the Magistrate was prohibited from taking into account the rights which each of the parties put forward in support of its case. Therefore the allegation of the original opponents that the informant Shivabhai though the natural brother of Chaturbhai was adopted in another family should necessarily be left out of account. But at the same time there is no doubt whatsoever that the original opponents did file affidavits to show that on the death of Chaturbhai they reaped the crops which Chaturbhai had raised on his estate. The original opponents have supported that allegation by producing the affidavits of a number of people. Though informant Shivabhai has denied that the original opponents were in possession on the date on which the order was made he has failed to deny the aforesaid allegations supported by the affidavits that the original opponents had reaped the crops raised by Chaturbhai on his estate. In addition to this there is documentary evidence in the case to show that the names of the original opponents were recorded in the revenue record and they paid the land revenue in respect of the estate of Chaturbhai. Having regard to the facts in my judgment the decision recorded by the Magistrate that the original opponents were in actual and physical possession of the property at the date of the preliminary order cannot be regarded as either incorrect or improper. Under the circumstances in my judgment the Magistrate was justified in making the order that he did in favour of the original opponents under sub-section (6) of section 145 Criminal Procedure Code. ( 19 ) FOR the aforesaid reasons in my judgment the reference deserves to be rejected. Reference rejected. Reference rejected. .