JUDGMENT : Misra, J. - Preliminary order u/s 145, Code of Criminal Procedure was passed on 7-12-1963 on the application of the first party. The disputed lauds belonged to one Bhagi Swain who had two sons, Ananda and Kusai. Ananda died in the year 1945 leaving behind his widow Champa, who subsequently died and two daughters, Basanti and Keshi. Madan Mohan Mohanty husband of Keshi, is the sole member of the first party. Kusai and his Ghanashyam are the first two members of the second party. The six other members of the 2nd party do not claim any interest in the disputed lands. The case of the 1st party in his written statement is that the disputed lands excepting 52 decimals belonged to Bhagi Swain. Kusai Swain was given in adoption to one Kurupa Swain of Tanara from his childhood by Bhagi Swain. On the death of Bhagi, the entire property was thus inherited by Ananda. In the Current Settlement record-of-rights of the year 1928 the disputed lands excepting 52 decimals stood recorded in the name of Ananda. Ananda, after the settlement, purchased 52 decimals of land in his own name. Basanti was given away in marriage before Ananda's death and she was living all along with her husband in village Baratia. After the death of Ananda Swain, his widow gave Kesi in marriage to Madan Mohan Mohanty who lived with Champa as Ghar Juain (son-in-law living in father-in law's house) and looked after cultivation and management of the property left by Ananda. As his possession was threatened he filed an application for taking steps against the members of the 2nd party u/s 145, Code of Criminal Procedure. It was admitted in the written statement itself that Madan Mohan used to pay the land revenue and rent to the Anchal through Kusai Swain. 2. The first 2 members of the 2nd party deny the allegation of adoption in their written statements. Their case is that the second party members 3 to 8 have no interest in respect of the disputed lands and the 3rd member of the 2nd party is only a Bhag tenant under the first 2 members in respect of plot Nos. 45, 46 and 147 of village Gahampur. Kurup Swain has a son Ramachandra Swain who is older than Kusai Swain and is still living. 45, 46 and 147 of village Gahampur. Kurup Swain has a son Ramachandra Swain who is older than Kusai Swain and is still living. After the death of Bhagi, Ananda and Kusai were living in a joint family till the year 1945 when Ananda died. On Ananda's death Kusai was the sole surviving coparcener and accordingly his name stood recorded in the landlords' sherista, Anchal Office, Water-rate papers and Chowkidari Assessment Register, and he is paying all along rents, water-rates and taxes and is in peaceful actual possession of the disputed lands. It is further asserted that. Ananda and Kusai purchased 61 acre of land from one Chintamani Rath in the year 1929 and 07 acre from one Dinabandhu Swain in the year 1941 where Kusai had been described as the son of Bhagi. This document was obviously referred to show that the allegation of adoption is untrue. The residence of Madan Mohan in the ancestral house of Bhagi is also denied. In paras. 16 and 17 of the written statement various plot numbers were mentioned distinctly showing the agricultural lands, Bari lands and the pond. 3. The learned Magistrate on discussion of the evidence before him held that the 1st party was in possession of the disputed lands on the date of the preliminary order and he directed him to retain possession until evicted in due course of law. Against this order, the first 2 members of the 2nd party have filed the revision. 4. Mr. Das contended that the final order passed on 27-7-1964 was vitiated in law inasmuch as the learned Magistrate failed to take into consideration large volume of documentary evidence filed by the 2nd party and to discuss the affidavits filed by the parties. He also urged that there being absolutely no evidence to establish the adoption of Kusai by Kurup Swain, Kusai's title to the disputed property should have been incidentally taken into consideration in assessing the evidence of actual possess on of the parties. The contention requires careful examination. 5. u/s 145(1), Code of Criminal Procedure, parties are to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Actual possession means actual physical possession. The contention requires careful examination. 5. u/s 145(1), Code of Criminal Procedure, parties are to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Actual possession means actual physical possession. It means the possession of the person who has his feet on the land, who is ploughing it, sowing or growing crops in it, entirely irrespective of whether he has any right or title to possess it. Actual possession is not to be confused with right to possess. It does not also necessarily mean lawful or legal possession. The mode of enquiry as to possession has been prescribed u/s 145(4). 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, so put in hear the parties and conclude the inquiry, as far as may be practicable, within a period of 2 months from the date of 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. The Magistrate should confine himself to the question of actual possession and has no power to inquire into and decide on the rights of the parties to possession of the property. The Magistrate can, however, consider questions relating to title where such consideration is necessary in order to effectively decided the question of possession or to corroborate or supplement other evidence as to possession. This view was held by a learned Single Judge in AIR 1920 Pat 499 which was accepted as good law by a Division Bench in AIR 1939 Pat 309. This view represents good 180 wand has my respectful concurrence. In AIR 1954 Pat 135 a contention had been advanced that the Magistrate ought not to have gone into the question of title to the property and the Magistrate was to concern himself with the actual possession of the property. The contention was rejected on the ground that the question of adoption relating to title was rightly considered to effectively decide the question of possession as one of the parties claimed possession on the footing of being the adopted son. The contention was rejected on the ground that the question of adoption relating to title was rightly considered to effectively decide the question of possession as one of the parties claimed possession on the footing of being the adopted son. The learned Magistrate in this case has not recorded any finding if Kusai is the adopted son of Kurup. Mr. Mohanty has not brought any material before me to make out even a prima facie case of adoption. Law is well settled that grave onus lies on the person who wants to displace the natural line of succession by alleging adoption. Not that of Kusai's adoption is not established, automatically he would be entitled to an order in his favour u/s 145, Code of Criminal Procedure. If he was not in possession on the date of the preliminary order, or was not forcibly and wrongfully dispossessed within two months next before the date of such order, the proceeding u/s 145(1) must terminate in favour of the first party even if he is a trespasser. But a finding on the question of adoption is still material to effectively determine the question of possession. If adoption is not established, a strong probability arises in favour of Kusai that he was in possession of the ancestral lands in his own right, title and interest and continued in possession till the date of the preliminary order as there is no independent case for the 1st party that but for adoption from early childhood Kusai was otherwise forcibly and wrongfully dispossessed. The determination of the question of adoption was thus incidentally essential for an effective decision on the question of possession, or, at any rate, to corroborate or supplement other evidence as to possession. Non-consideration of the materials on record of this aspect of the case and absence of a finding on the point affect the ultimate finding on the question of possession. 6. It is clear from the judgment of the learned Magistrate as also from the record that large many documents were filed on either side. It is somewhat remarkable that those have no, been marked as exhibits. Some of the documents, which are public documents, could have been marked either on admission or without objection. Private documents could be marked only on proof of execution unless otherwise admitted. It is somewhat remarkable that those have no, been marked as exhibits. Some of the documents, which are public documents, could have been marked either on admission or without objection. Private documents could be marked only on proof of execution unless otherwise admitted. When the documents have not been marked as exhibits, they cannot be used as legal evidence. That apart, the learned Magistrate must apply his judicial mind to each of the documents to see if they assist him in arriving at a conclusion regarding the factum of actual possession. When the 2nd party filed receipts for payment of water-rate, rent-receipts, from Anchal and Chowkidari tax receipts for the house, the learned Magistrate should have clearly analysed the evidence on the basis of which he came to the conclusion that they were not paid OD their behalf in their own right, title and interest but on behalf of the 1st party. Both parties submitted before rue that for the identical and the same periods, each party had filed rent receipts. That is somewhat astonishing. The learned Magistrate should have clearly analysed and held which of them are genuine and which are fabricated for the purpose of the case. The judgment also suffers from further infirmity that though admittedly some of the disputed lands relate to the residential house and pond, it does not separately deal with Bari lands, agricultural lands and pond. Merely because some of the witnesses swearing affidavits on behalf of the first party have lands contiguous to some of the agricultural lands, it does not mean that their affidavits should be preferred to those of the second party relating to the pond and the residence. In the revision application, the Petitioners clearly stated on affidavit that the residential house stands on plot 2614 appertaining to Khata 966 in Mouza Tanara. This fact is not disputed and there is no separate finding as to the occupation of the residential house. The affidavits have been discussed on masse and not separately as oral evidence is to be weighed. On the aforesaid consideration the order of the learned Magistrate suffers from the infirmity that it has overlooked essential pieces of evidence which would throw light on the factum of actual possession of the parties. In revision it is not the function of this Court to substitute its own finding for that of the Magistrate. On the aforesaid consideration the order of the learned Magistrate suffers from the infirmity that it has overlooked essential pieces of evidence which would throw light on the factum of actual possession of the parties. In revision it is not the function of this Court to substitute its own finding for that of the Magistrate. All the materials on record have not also been threadbare placed before me. As many material pieces of evidence have been overlooked, as indicated above, it is not possible for me to say that the decision arrived at would not have been different if an the materials had been taken into consideration. 7. The only other question for consideration is whether the final order would be quashed merely on the ground that it has not taken into consideration all the materials on record. A final order u/s 145, Code of Criminal Procedure does not come within the definition of a 'judgment' under Sections 366 and 367, Code of Criminal Procedure. But yet it should be a reasoned order. u/s 435, Code of Criminal Procedure the High Court may call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court. u/s 439(1), Code of Criminal Procedure, in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge the High Court may, on its discretion, exercise any of the powers conferred on a Court of appeal by various sections enumerated therein. As the High Court has full jurisdiction to quash such proceedings, the order of the Magistrate must be a reasoned and speaking order recording finding in accordance with Section 145(4), Code of Criminal Procedure. It is open to this Court to quash the order if it is of opinion that the material evidence has been ignored from consideration in arriving at the finding. There is some difference of opinion on this point. The matter has been fully considered in a Bench decision in Bansi and Others Vs. Hari Singh and Others. It is open to this Court to quash the order if it is of opinion that the material evidence has been ignored from consideration in arriving at the finding. There is some difference of opinion on this point. The matter has been fully considered in a Bench decision in Bansi and Others Vs. Hari Singh and Others. Their Lordships observed that while making an order u/s 145(4), the Magistrate was not required to write an elaborate and detailed judgment such as is demanded by Section 367, Code of Criminal Procedure; but he must give a statement for reasons of his decision sufficient to enable the High Court to determine whether he had or had not complied with Section 145, Sub-section (4) and directed his mind to the consideration of the effect of the evidence adduced before him. I am in full agreement with this view. This is in line with my view expressed in Criminal Revision No. 283 of 1964. 8. In the result the final order passed by the learned Magistrate on 27-7-1964 is quashed and the case is remanded for disposal, in accordance with law and the directions given above by another competent Magistrate to be selected by the District Magistrate. The revision is allowed. The case is directed to be disposed of within two months from to any. The lower Court records should be sent back at once. Final Result : Allowed