Ramniklal Kothari v. Bhuneshwar Singh — 1970 DIGILAW 47 (PAT)

Judgment G.N.Prasad, J. 1. This application in revision is directed against the final order in a proceeding under Sec.145, Code of Criminal Procedure, hereinafter referred to as the Code, passed by a Magistrate exercising first class powers at Giridih on the 15th October, 1968, in conformity with the decision of the Munsif of Giridih dated the 10th August, 1968, to whom the question of possession over the subject of dispute was referred under Sub-section (1) of Sec.146 of the Code under the order of the Enquiring Magistrate dated the 1st June, 1967. The petitioners are the second party to the proceeding which was ordered to be drawn up on the 29/30th September, 1966, while dealing with a proceeding under Section 144 of the Code which was drawn up against both the parties to the dispute on the 5th August, 1966. The subject of dispute was 387.30 acres of land (wrongly totalled as 388.00 acres) of coal bearing land situated towards the north of the Gomoh-Barkakhana Railway line in village Turio, within the jurisdiction of Bermo police station, in the district of Hazaribagh. The former proprietor of the village was the Raja Bahadur of Ramgarh, whose estate vested in the State of Bihar in 1953-54. 2. The case of the first party was that they had entered into possession over the entire land comprised in village Turio, measuring 2810 bighas or thereabouts, by virtue of a lease executed in their favour by the Raja Bahadur on the 26th February, 1946, and had begun mining operations under the name and style of Turio Colliery. The term of the lease was for three years, but they continued to hold over even after the expiry of the said term, except with respect to 600 bighas out of the aforesaid 2810 bighas, which they had released and allowed to be leased out to two other persons in order to avoid litigation and dispute. Out of the said area of 600 bighas situated towards the north of the Railway line, 100 bighas were subsequently leased out to one B. J. Dave and 500 bighas to Ramchandar Singh, the father of the second petitioner Gouri Shanker Singh. In the meantime, the Raja Bahadur had assigned his interest in the village to a company known as the Jharkhand Industries and Mines Limited. In the meantime, the Raja Bahadur had assigned his interest in the village to a company known as the Jharkhand Industries and Mines Limited. It was this company which had granted the lease to B. J. Dave and Ramchandar Singh as aforesaid sometime in 1949. The possession of the first party over the rest of the village continued as before. After the vesting of the estate, a series of litigations broke out between the Raja Bahadur and the State of Bihar. In the meantime, the first party applied to the State Government for being recognised as a mining lessee with respect to the area of 2210 bighas, including the disputed 387.30 acres which lies contiguous to the 500 bighas, of which the second party were in possession by virtue of their lease from the company. In this connection there were various correspondence between the first party and the State Government, which ultimately demanded the arrears of rent and royalty amounting to rupees one lac and odd from the first party. The first party paid the bulk of the arrears to the State Government and were paying the balance in stipulated instalments of Rs. 2,000.00 per month, commencing from the 15th August, 1966. In June, 1966, the State Government recommended to the Central Government for grant of a mining lease to the first party, but before the approval of the Central Government was received, the police made a report of apprehension of breach of the peace between the parties, whereupon a proceeding under Sec.144 of the Code was drawn up in the first instance against the first party only, but subsequently against both the parties, on the 5th August, 1966, as already stated. 3. The case of the second party was that after the expiry of the term of the lease dated the 26th February, 1946, the first party were not in possession at all over the disputed area, nor had they carried on any mining operations over the same. In 1949, three leases were executed by Jharkhand Industries and Mines Limited; one in favour of B. J. Dave in respect of 100 bighas, another in favour of Ramchandar Singh in respect of 500 bighas and the third in favour of the first party in respect of 500 bighas. In 1949, three leases were executed by Jharkhand Industries and Mines Limited; one in favour of B. J. Dave in respect of 100 bighas, another in favour of Ramchandar Singh in respect of 500 bighas and the third in favour of the first party in respect of 500 bighas. This lease in favour of the first party related to lands situated towards the south of the Railway line, while the lease in favour of the second party was in respect of land situated towards the north of the Railway line. Since then the mining and prospecting operations of the first party have been confined to the aforesaid southern portion of 500 bighas, whereas the second party as well as B. J. Dave started coal mining operations in their respective lease-hold lands situated on the north of the Railway line. The further case of the second party was that the disputed land lies in the immediate surrounding of their tract of 500 bighas and so the members of the second party extended their possession over the disputed land by performing various acts like dumping the extracted coal, erecting sheds or Dhowrahs for coolies, inclines, shafts, etc. The further case of the second party was that it was they who had first applied to the State Government for a lease of the disputed land, but the State Government were influenced by the first party, whose case was recommended to the Central Government. The second party, however, filed a revision before the Central Government which was pending at the time when the present proceeding was drawn up. 4. Both parties put in written statements of their respective claims to possession over the subject of dispute as well as documents and affidavits in support of their respective cases. But the Enquiring Magistrate found himself unable to "give any specific findings as regards the possession of either of the parties in respect of the disputed lands". Hence, by his order dated the 1st June, 1967, he referred the case "under Sec.146 Criminal Procedure Code to the learned Munsif, Giridih for favour of his findings", directing the parties to appear in the Court of the learned Munsif on the 26th June, 1967. 5. Hence, by his order dated the 1st June, 1967, he referred the case "under Sec.146 Criminal Procedure Code to the learned Munsif, Giridih for favour of his findings", directing the parties to appear in the Court of the learned Munsif on the 26th June, 1967. 5. Upon this reference, the learned Munsif went into the matter and ultimately came to the conclusion that the members of the first party were in possession over the disputed land on the date of the institution of the proceeding. On receipt of the finding of the learned Munsif, the Magistrate passed the impugned order on the 15th October, 1968, in favour of the first party. Being thus aggrieved, the second party have come up to this Court in revision. Besides invoking the revisional jurisdiction of this Court under Sections 435 and 439 of the Code, the petitioners have also sought our interference by an appropriate writ under Article 227 of the Constitution. This course has been adopted by the petitioners in view of the decision of the Full Bench in Raja Singh V/s. Mahendra Singh. 1963 BLJR 496 = ( AIR 1963 Pat 243 FB), which lays down that in appropriate cases, it is open to the High Court to interfere with the finding of the Civil Court recorded on a reference under Sec.146 of the Code in exercise of its powers under Article 227 of the Constitution. 6. Mr. B. C. Ghose appearing for the petitioners has assailed the validity of the order on various grounds. He contends that the decision of the learned Munsif is void, and as a consequence, the final order in the proceeding is fit to be quashed. According to Mr. Ghose, the reference which was made to the Munsif of Giridih was not a valid reference in accordance with law, inasmuch as it was not made to a Court of competent jurisdiction within the meaning of Sec.146 (1) of the Code. He says that it has been decided in another case in this Court, sometime in January 1970, that the valuation of the property is more than Rs. 20,000/, and as such the Munsif could have no pecuniary jurisdiction over the subject of dispute. He says that it has been decided in another case in this Court, sometime in January 1970, that the valuation of the property is more than Rs. 20,000/, and as such the Munsif could have no pecuniary jurisdiction over the subject of dispute. In support of his contention that a Civil Court of competent jurisdiction for the purpose of Sec.146 (1) of the Code must have not only territorial, but also pecuniary jurisdiction over the subject of dispute, Mr. Ghose relies upon Ram Chandra Aggarwal V/s. State of Uttar Pradesh, AIR 1966 SC 1888 and has also drawn our attention to the decision of a learned Single Judge of the Punjab and Haryana High Court in Maharaj Kumar Gajbir Singh v. Maharaja Satbir Singh, 1968 Cri LJ 971 = (AIR 1968 Punj 301). 7. The precise question came up for decision before a Bench of this Court in Bodh Narain Prasad V/s. Deo Narain Singh, AIR 1958 Pat 308 . It was held that the competency of the Civil Court as provided in Sec.146 of the Code consists only of its territorial jurisdiction. As to Sec. 6 of the Code of Civil Procedure which deals with the pecuniary jurisdiction of Civil Courts, it was pointed out that its scope is limited to suits or to proceedings in continuation or arising out of suits, and as to Sec.141 thereof, reference was made to the interpretation put in Thakur Pershad V/s. Sheikh Fakirullah, (1895) 22 Ind App 44 (PC) by Lord Hob-house upon the corresponding section -- Sec. 647 -- of the Code of 1882, to the effect that the proceedings spoken of therein are meant to include "original matters in the nature of suits such as proceedings in probates, guardianships, and so forth .....". A reference to a Civil Court under Sec.146 (1) of the Code being neither a suit as contemplated by Sec. 6 nor a proceeding arising out of or in connection with a suit within the meaning of Sec.141 of the Code of Civil Procedure, it was held that it cannot be put to any limitation of pecuniary jurisdiction. A reference to a Civil Court under Sec.146 (1) of the Code being neither a suit as contemplated by Sec. 6 nor a proceeding arising out of or in connection with a suit within the meaning of Sec.141 of the Code of Civil Procedure, it was held that it cannot be put to any limitation of pecuniary jurisdiction. In course of his concurring judgment, Misra, J. (as he then was) added, if I may say so with respect, a weighty ground in support of this view in the following words: "If this expression Civil Court of competent jurisdiction were to include pecuniary jurisdiction as well, the referring Magistrate in every case will have to determine the value of the subject-matter in dispute before him which may necessitate the recording of fresh evidence. It will, in any case, give rise to a new proceeding of an incidental character which may be open to challenge in a superior Court. If the Civil Court to which the reference is made has to determine the issue, the position is worse still, as that Court after recording evidence on the point may have to transmit back the record to the Magistrate making the reference if it finds that it is beyond its pecuniary jurisdiction." The force of these observations of Misra, J., will be appreciated if it is remembered that the intention of the Legislature in amending Sections 145 and 146 of the Code by Act 26 of 1955 was that there should be speedy disposal of such proceedings. That is why a period of two months has been provided in Sec.145 (4) and a period of three months has been indicated in Sec.146 (1B). If the referring Magistrate or the referred Civil Court were to embark upon an inquiry as to the valuation of the subject of dispute for the purpose of determining which Court is the Civil Court of competent jurisdiction in relation to a particular proceeding, then it will take years to make such a reference or to decide the dispute between the parties, remembering also the possibility in a majority cases of the question of valuation being taken to the High Court in revision against the decision of the referring Magistrate or of the referred Civil Court, and thereby the whole object of the Legislature in making the said amendments in the Code will be frustrated. Besides, the view taken in Bodh Narains case, AIR 1958 Pat 308 has been approved by the Full Bench of this Court in Raja Singhs case, 1963 BLJR 496 = ( AIR 1963 Pat 243 ) (FB), to which I have made a reference above. In face of these decisions of this Court I would not be justified in accepting the opinion of the learned Single Judge in Gajbir Singhs case, 1968 Cri LJ 971 = (AIR 1968 Punj 301) who, incidentally, has given no reasons in support of the proposition that competent jurisdiction in Section 146 of the Code refers to territorial as well as pecuniary jurisdiction. 8. Mr. Ghose contends that the view expressed in the two Patna decisions referred to above must be deemed to have been overruled by the Supreme Court in AIR 1966 SC 1888 . In that case the only point which fell for decision before their Lordships was whether the District Judge had jurisdiction under Sec.24 of the Code of Civil Procedure to transfer a reference made by the Magistrate under Sec.146 of the Code to a particular Civil Court to another Civil Court. "What had happened was that upon the application of one of the parties to the proceeding under Sec.145 of the Code, the District Judge had transferred the reference made under Sec.146 from the Court of Munsif A to the Court of Munsif B. The opposite party acquiesced in the order of transfer and Munsif B gave his finding in favour of the petitioner. But after the final order under Sec.145 (6) was passed in his favour, the opposite party assailed the same in revision before the Sessions Court on two grounds; (i) that Munsif B had no territorial jurisdiction over the subject of dispute, and (ii) the order of transfer passed by the District Judge was without jurisdiction. The Sessions Court rejected both these contentions on the ground that they were not raised earlier. In further revision before the Allahabad High Court, only one ground was pressed, namely, that Sec.24 of the Code of Civil Procedure was not available in respect of a reference under Sec.146 (1) of the Code. But the High Court negatived this contention. The Sessions Court rejected both these contentions on the ground that they were not raised earlier. In further revision before the Allahabad High Court, only one ground was pressed, namely, that Sec.24 of the Code of Civil Procedure was not available in respect of a reference under Sec.146 (1) of the Code. But the High Court negatived this contention. Upholding the decision of the High Court, their Lordships of the Supreme Court pointed out that the expression "proceeding" used in Sec.24, Code of Civil Procedure, is not a term of art which has acquired a definite meaning, and that in the context in which the word has been used in Sec.24 (1) (b), it must be given a comprehensive meaning so as to include within its ambit all matters coming up before the Civil Court for judicial adjudication, and not confined to a civil proceeding alone. Therefore, a proceeding before a Civil Court arising out of a reference made to it under Sec.146 (1) of the Code can be transferred by the District Judge under Sec.24, Code of Civil Procedure, because it is in any case a proceeding. Their Lordships did not consider it necessary to decide whether it is also a civil proceeding to which the procedure for suits could be applied with the aid of Sec.141 of the Code of Civil Procedure, but pointed out that there is good authority for saying that it is a civil proceeding as contemplated by Sec.141, Civil Procedure Code. In course of their judgment, their Lordships commented upon an earlier decision of the same High Court in Sri Sheonath Prasad v. City Magistrate, Varanasi, MR 1959 All 467, which proceeded upon the footing that the proceeding before the Civil Court on a reference under Sec.346 (1) of the Code was not a civil proceeding and made the following observation upon which Mr. Ghose particularly relied: "The decision ignores the vast body of authority which is to the effect that when a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable to them. . . Ghose particularly relied: "The decision ignores the vast body of authority which is to the effect that when a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable to them. . . .We would also like to refer to the decision of this Court in Narayan Row V/s. Ishwar Lal, AIR 1905 SC 1818 in which it was held that there is no reason for, restricting the expression Civil Proceedings only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits." Upon this pronouncement, it must follow that the view expressed in the Patna decisions that the proceeding in the Civil Court upon a reference made to it under Sec.146 (1) of the Code continues to be criminal proceeding must be deemed to have been overruled. But it would not be right to take this pronouncement as laying down that such a civil proceeding must be governed in all respects by the procedure applicable to suits. For example, a reference of this nature cannot be dismissed for default under Order IX of the Code of Civil Procedure. Nor can it be returned without adjudication for presentation before another Court. As a matter of fact, their Lordships were not construing the meaning of the expression "Civil Courts of competent jurisdiction" which occurs in Sec.146 (1) of the Code, and have not decided that it takes within its ambit both the territorial and the pecuniary jurisdictions of the referred Civil Court. A reference made by a Magistrate under this section cannot be treated as having been instituted as envisaged in Sec.15, Code of Civil Procedure, which enjoins that: "Every suit shall be instituted in the Court of the lowest grade competent to try it." The referring Magistrates position cannot be equated with that of a plaintiff who has to ascertain the pecuniary as well as the territorial jurisdiction of the Court where his suit would lie. The ground given by Misra, J. in Bodh Narains case, AIR 1958 Pat 308 , for holding that the concept of pecuniary jurisdiction cannot be brought in for the purpose of construing the meaning of the expression Civil Court of competent jurisdiction is in no way inconsistent with the legal position that a reference made under Sec.146 (1) of the Code takes the character of civil proceeding in the referred Civil Court. I, therefore, hold that the Supreme Court decision, upon which Mr. Ghose has relied, cannot be regarded as having overruled the view expressed in the decisions of this Court referred to above that the competency of the Civil Court as provided in Sec.146 of the Code is limited to its territorial jurisdiction only. I am, therefore, unable to uphold the contention of Mr. Ghose that the impugned order is invalid on the ground that the valuation of the subject of dispute has been found to be more than Rs. 20,000. 9. Mr. Ghose has also assailed the validity of the reference made by the Magistrate under Sec.146 (1) of the Code on the ground that it was made by him without making a real effort to decide which of the rival parties were in possession over the subject of dispute on the materials placed before him. It is quite, as held in several decisions of this Court, that the Magistrate is not justified in making a reference under Sec.146 (1) mechanically or with a view to shirking his own responsibility but must first make a serious effort to come to his own conclusion upon the materials placed before him, and it is only then that he can make a reference to the Civil Court if he finds himself unable to come to a decision as to which of the parties before him is in possession. But upon a perusal of the statement of the case drawn up by the learned Magistrate on the 1st June, 1967, I am unable to hold that he had made the reference mechanically or without making any serious effort to arrive at his own conclusion upon the disputed question of possession. He had referred to the various documents in support of the cases of the respective parties and then recorded his inability to give any specific finding as regards possession of either of the parries in respect of the disputed land. He had referred to the various documents in support of the cases of the respective parties and then recorded his inability to give any specific finding as regards possession of either of the parries in respect of the disputed land. He did not enter into a detailed discussion of the affidavit of witnesses as he felt that it would not be right to "allow the determination of the issue in the present case to be unduly influenced by the affidavit", which "provide a picture of oath against oath and they did not provide a satisfactory key to the intricate problem which is posed by the instant proceeding". It is, no doubt, true that under the law, as it now stands, it is the duty of the Enquiring Magistrate to apply his mind to such affidavits and not to dismiss them from consideration merely by observing that they provide a picture of oath against oath. But it is equally true that the affidavits cannot be made the sole criterion of decision in a complicated case or read in isolation with the documents and other materials brought on the record. The effect of all the materials, including documents and affidavits, has to be taken into consideration for the purpose of arriving at a satisfactory decision on the question or possession raised in the proceeding. Having gone through the statement of the case prepared by the learned Magistrate, I am unable to hold that he had made no serious effort to come to his own decision or that he had made the reference mechanically or to shirk his own responsibility. 10. Turning to the decision of the learned Munsif, Mr. Ghose has raised a similar argument upon the discussion of the affidavits made by him. In regard to the affidavits, the Munsif has made the following observations: "Both the parties have filed affidavits of good many persons. All of them are stereotyped character with little to distinguish the one from the other except the address of the deponents. Each set of deponents has supported the possession of the party concerned in a parrot like manner. So the deponents of the respective side appear to be partisans. It may be noted that both the parties are colliery owners. They would be evidently employing the residents of the locality in their coal fields. Each set of deponents has supported the possession of the party concerned in a parrot like manner. So the deponents of the respective side appear to be partisans. It may be noted that both the parties are colliery owners. They would be evidently employing the residents of the locality in their coal fields. So it is easy for each party to influence some persons of the area to support the possession over the disputed land. Therefore, I am not inclined to attach any importance to the affidavit evidence. Even if the affidavits be taken on their face value, the position would be that the oral evidence of possession would be quite balanced, there being oath against oath. The balance then will have to be tilted by other circumstances. As shown above, the other circumstances point to the possession of the first party and so it has to be upheld in this proceeding." In my judgment, in the circumstances of the present case, this represents an adequate consideration of the affidavits of the parties. Unless the Munsif had applied his mind to the affidavits, he would not have been in a position to note their stereotyped character or that each set of deponents had supported the possession of the party concerned in a parrot-like manner. In a case where oral evidence of either side is equally balanced, it is not unreasonable for a Court to accept the evidence of one side in preference to the oral evidence of the other side in the light of the other materials and circumstances appearing on the record. I, therefore, hold that there is no substance in the grievance made by Mr. Ghose against the discussion of the affidavits made by the learned Munsif. 11. The more serious grievance of Mr. Ghose against the judgment of the learned Munsif is that his finding of possession in favour of the first party is inconsistent with the case put forward by them to the effect that they had continued to hold over the disputed land even after the expiry of the term of their lease dated the 26th February, 1946. The argument of Mr. Ghose is that in the context of the case of holding over set up by the first party, it was not open to the learned Munsif to proceed upon the footing that the first party were in possession as trespassers. The argument of Mr. Ghose is that in the context of the case of holding over set up by the first party, it was not open to the learned Munsif to proceed upon the footing that the first party were in possession as trespassers. In paragraph 9 of his order, the learned Munsif has dealt with the matter in the following manner: "Thus, the position that emerges from the foregoing is that the claim of each party is one of illegal, unauthorised or wrongful possession. The members of the first party could be rightfully in possession over only 500 bighas south of the railway fine. Likewise the second party could be rightfully in possession over only 500 bighas north of the railway line. Any possession over any portion beyond the aforesaid area would be evidently unlawful. The members of the second party have minced matters in this behalf. They have outspokenly asserted that in course of mining operations within their legal leasehold, they extended their possession over the adjacent and surrounding disputed land. In other words, they trespassed upon it. It is the members of the first party who have endeavoured to impart a legal colour by claiming to be tenants holding over. But as shown above, they cannot be held to have that status and, therefore, they too would be rank trespassers. As such, in this proceeding, the possession of one or the other trespasser has to be determined." I do not, however, think that this approach is inconsistent with the case of actual possession set up by the first party. The status which they claimed in respect of the disputed land could not affect the factum of their possession over it. What the Munsif was concerned with was the question of actual possession, and not with the right of possession set up by the first party. A person may be found to be in actual possession even though he may have no legal right to such possession, I, therefore, see no inconsistency between the case put forward by the first party and the finding recorded by the Munsif. 12. Mr. A person may be found to be in actual possession even though he may have no legal right to such possession, I, therefore, see no inconsistency between the case put forward by the first party and the finding recorded by the Munsif. 12. Mr. Ghose then contends that having found the first party to be rank trespassers, the learned Munsif was not entitled to hold on the basis of certain letters put in by the first party that the rightful owner, namely, the State Government had acknowledged their possession over the disputed land. There are two such letters on record; one dated the 14th February, 1966, addressed by the District Mining Officer to the first party, calling upon them to explain as to why they had started working of coal to the north of the railway line where the land was virgin during his last inspection, and the other dated the 17th June, 1966 addressed by the State Government recommending to the Central Government for grant or mining lease to the first party in respect of 1710 bighas, including the disputed land, in village Turio. Dealing with the first letter, the learned Munsif observed: "This shows that much before the commencement of the present proceeding, the first party started coal extracting work on the north of the railway line." And with regard to the second letter, the Munsif has made the following observation: "It has been clearly stated in this letter that the area is in working possession of the first party and that they have been paying rent and royalty for the whole of it. Thus, the rightful owner has acknowledged the possession of the first party over the whole area of V. Turio except the 600 bighas included in the lease of second party and of B. J. Dave. The disputed land admittedly falls within that area and therefore their possession over the disputed land was also acknowledged." Here again, I can see no inconsistency in the discussion of the learned Munsif. These letters by themselves could not confer any tenancy status to the first party. What they showed was that the State Government accepted the fact that the first party were in possession over the disputed land did not propose to take any steps for evicting them therefrom. These letters by themselves could not confer any tenancy status to the first party. What they showed was that the State Government accepted the fact that the first party were in possession over the disputed land did not propose to take any steps for evicting them therefrom. They had also started taking rent and royalty from the first party in anticipation of the grant of a formal lease to them with the sanction of the Central Government. Upon these materials, the learned Munsif was amply justified in upholding the claim of actual possession which the Erst party had put forward in the proceeding. The Munsif was not concerned with determining the legal status of the party in possession. This contention of Mr. Ghose is, therefore, entirely without force. 13 Mr. Ghose finally contends that the letters referred to above should not have been looked into as they were inadmissible in evidence, not having been proved as required by the Evidence Act. Mr. Ghose relies in this connection upon Sub-section (1A) of Sec.146 of the Code which enjoins that for the purpose of deciding the question of possession referred to it, the Civil Court shall "peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence", besides hearing the parties. The word "evidence" used at three places in Sub-section (1A) indicates, as Mr. Ghose contends, that the Civil Court is entitled to look into only such documents as are formally proved in accordance with the rules of proof of documents contained in the Evidence Act. This argument overlooks the definition of "Evidence" which is to be found in Sec.3 of the Evidence Act. According to that definition, "Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. It is quite clear, therefore, that the letters relied upon by the first party were evidence on record which the Munsif was not only entitled but bound to peruse and consider their effect as required by Sub-section (1A) of Sec.146 of the Code. Even under the Evidence Act, formal proof of documents can be waived. It is quite clear, therefore, that the letters relied upon by the first party were evidence on record which the Munsif was not only entitled but bound to peruse and consider their effect as required by Sub-section (1A) of Sec.146 of the Code. Even under the Evidence Act, formal proof of documents can be waived. Therefore, a document cannot cease to be a piece of evidence unless it bas been formally proved. Sub-section (1A) speaks of evidence, and not of proof of documentary evidence, Besides "the evidence on record" envisaged a Sub-section (1A) has reference to all the materials which have been put in by the parties in the proceeding before the Enquiring Magistrate in accordance with Sub-section (4) of Sec.145. These letters were, therefore, "the evidence on record" which the Munsif was bound to peruse and consider while dealing with the reference made to him under Section 146 (1). He would Dot have been justified in rejecting them as inadmissible, particularly when the petitioners raised no objection before him that they could not be looked into or considered without being formally proved. I, therefore, overrule this contention of Mr. Ghose and hold that the decision of the learned Munsif is not vitiated on the ground that it has been arrived at on the basis of inadmissible evidence. 14. For the foregoing reasons, I have come to the conclusion that no ground has been made out for interference with the impugned order. The application is, accordingly, dismissed. Wasiuddin, J. 15 I agree.