Judgment Shivanugrah Narain, J. 1. This application by the second party to a proceeding under section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code is directed against the order dated 29-12-1976 of shri H. N. P. Singh, Magistrate, Bettiah, by which he has declared the possession of the first party over 4 kathas and 20 dhurs of land comprised in in survey plot no.5031, appertaining to khata no.132 and survey plot no.5524 appertaing to khata no.133 both in village Jaitia, P. S. Champatia in the district of West Champaran. 2. Admittedly, the lands which were the subject-matter of the proceeding, originally belonged to two brothers Muni Sah and Tepeswar Sah, Muni Sah died leaving behind a widow Rajpatia and Tapeshwar Sah died leaving behind two daughters Turiya and Paswa. The first party Bagar Sah, who is the opposite party in this court, is son of Turiya. 3. The case of the first party, briefly abated, is that Tapeshwar Sah died in the year 1936 in a state of jointness with his brother Muni Sah and all the properties devolved by survivorship on his brother Muni Sah and, therefore, muni Sah become the sole owner of the entire land of the family including the disputed land. On the death of Muni Sah in the year 1956, his properties devolved on his widow and heir Mst. Rajpatia who sold the land in dispute to Begar Sah, the first party, by a registered sale-deed in the year 1962 and put him in possession and that Begar Sah continued to be in possession thereafter. 4. The case of the second party, however, was that in the year 1945, the brother Muni Sah and Tapeshwar Sah suggested and by a private partition the land in dispute along with other lands come to the share of Tapeshwar sah, Tapeshwar Sah died in the year 1957 and his properties were inherited by his two daughters Turiya and Paswa, who came in possession of the same. In 1959, the case further was Mst. Turiya sold certain lands within which the disputed land was comprised by a registered sale-deed to Kedar Pandey, father of the second party, and Kedar Pandey and the members of his family came in possession of the entire disputed land thereafter. In 1959, the case further was Mst. Turiya sold certain lands within which the disputed land was comprised by a registered sale-deed to Kedar Pandey, father of the second party, and Kedar Pandey and the members of his family came in possession of the entire disputed land thereafter. The posession over the land comprised in survey plot no.5524 had been, acquired by him after the mortgage-deed in respect of the same was redeemed by Mst. Peswa According to the second party, by a partition between Turiya and Peswa, the entire disputed land was allotted to Paswa, the vendor of the father of the second party. 5. After both the parties had filed their written statements, the Magistrate in seisin of the case examined, one witness on behalf of the first party on 15-10-1976 and thereafter, the case was adjourned to 3-11-1976 and then to 15-11-1976. On 15-11-1976, as it appears from the order-sheet of that date, both the parties appeared and witnesses on behalf of the first party were present. On that date, the learned Magistrate passed the following order : "it appears from the record that inadvertently there has been error in the procedure. The law, as it stands, to my mind, is that after the W/s is filled by the parties, the Magistrate will hear parties, take evidence and if considered, take further evidence. The parties should, therefore, file their documents etc. on 20-11-1976. Parties will be heard on 24-11-1976". On 20-11-1976, the next date fixed, both parties filed their documents and the case was adjourned to 24-11-1976 for hearing as already fixed. On 24-11-1976, the next date fixed in the case, arguments of the Advocate for the first party were heard in part and on 10-12-1976 arguments on behalf of both the parties was concluded and the case was adjourned to 22-12-1976 for orders. Oh 22-12-1976 the case was adjourned for orders on.29-12-1976 on which date, as already stated, the learned Magistrate passed the final order declaring the possession of the second party. 6. It is manifest from the aforesaid narrative that only one witness was examined on behalf of the first party, no witness was examined on behalf of the second party and the other witnesses of the first party were not examined even though two of them were present on 15-11-1976 and no opportunity was given to the second party to adduce oral evidence. It is true, as pointed out by Mr. Md. Khaleel, Advocate appearing for the opposite-party, that the second party never actually produced his. witnesses for examination but as the learned Magistrate refused to examine witnesses of the first party on 15-11-1976, even though they were present, and stated in his order of that date that there had been an error in procedure, the second party could justifiably have thought that production of witnesses would be an idle and meaningless formality, because the learned Magistrate would not take their evidence still he had heard arguments in the case. It is, therefore, manifest that the learned magistrate shut out, in part, the oral evidence of the first party and did not give any opportunity to the second party to adduce oral evidence and thereby declined to receive oral evidence produced by the second party. This action of the Magistrate was clearly illegal and in flagrant violation of the provisions of sub-section (4) of section 145 of the Code, which, omitting the proviso, runs thus: "4. The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statement so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-clause (1) in possession of the subject of dispute". It is, therefore, manifest that sub-section (4) of section 145 of the Code imposes a duty on the Magistrate to "receive all such evidence as may be produced" by the parties and the decision regarding the question of possession has to be given by him only after he has received such evidence and taken such further evidence as he thinks necessary. In view of the provisions of sub-section (4)of section 145 of the Code, it is a condition precedent to passing of final order under section 145 of the Code that the Magistrate receive all such evidence as may be produced before him. All evidence includes oral evidence produced by the parties also. This can admit no doubt. In view of the provisions of sub-section (4)of section 145 of the Code, it is a condition precedent to passing of final order under section 145 of the Code that the Magistrate receive all such evidence as may be produced before him. All evidence includes oral evidence produced by the parties also. This can admit no doubt. If any authority were needed for this proposition, I would refer to the decision in Sakhayat Ali Munshi V/s. Alhadi Hazi, (AIR 1918 Cal 94) in which a Bench of the Calcutta High Court referrnig to a proceeding under section 143 of the Code of Criminal Procedure, 1898, observed that "the cardinal principle is that in such proceedings both parties must be given an opportunity of adducing such evidence as they are advised to give and held that the order must be set aside because the learned magistrate had not given the petitioner, or indeed either party, any opportunity of adducing oral evidence in support of their cases of possession. 7. It is true that the order which the Calcutta High Court had to deal withing that case was not an order passed under the Code of Criminal Procedure, 1973; it was passed under the Code of Criminal Procedure, 1898, as it stood prior to the Code of Criminal Procedure (Amendment Act) 1955. The statutory provision was, however, in pari materia with the provision of sub-section (4)of section 145 of the present Code. Sub-section (4) of section 145 of the Code then required a Magistrate to receive the evidence. The expression receive all such evidence as may be produced is stronger than the expression receive the evidence and, therefore, the aforesaid decision of the Calcutta High Court is opposite. Mr. Md. Khaleel fairly, and in my opinion rightly, did not dispute that the order passed by the learned Magistrate on 15-11-1976 by which, in effect, he shut out the oral evidence, was bad in law. Prima facie, therefore, the order must be set aside as prejudice is inevitable in a case in which a party is denied an opportunity of adducing oral evidence in support of his case of actual possession. 8. Mr. Md. Prima facie, therefore, the order must be set aside as prejudice is inevitable in a case in which a party is denied an opportunity of adducing oral evidence in support of his case of actual possession. 8. Mr. Md. Khaleel, however, contends that the petitioner cannot be permitted to impugn the legality of the final order passed in the case because he had acquiesced in the illegal order passed on 15-11-1976 and had taken the chance of a decision in his favour. In support of this contention, reliance is placed by him on the decision in Raja Lal Singh Ram Prasad Singh, (1975 bihar Bar Council Journal, 263) in which it was held that if the party takes a chance of getting favourable order passed in his favour, then he cannot, on principles of estoppel, question the initial order converting the proceeding under section 144 into one under section 145 of the Code. In that case, the order converting the proceeding under section 144 into one under section 145 was held to be valid and not illegal. 9. In my opinion, the aforesaid principle has no application to the present case. In the first place, the order dated 15-11-1976 in which the petitioner is alleged to have acquiesced does not in clear and unequivocal terms say that parties would not be allowed to adduce any further oral evidence. The fact that the learned Magistrate did not examine the witnesses present on behalf of the first party and observed that there had been an error in procedure may support the inference that oral evidence would not be permitted, but the law was enunciated by the Magistrate as requiring the Magistrate to "her parties, take evidence and if he considers, take further evidence and then the Magistrate directed the documents to be filed on 20-11-1976 and parties to be heard on 24-11-1976. The petitioner may well have been under the impression that the question whether further evidence will be taken or not would be decided by the Magistrate after the documents were filed and the parties were heard. The petitioner, therefore, on 15-11-1976 could not be credited with the knowledge that he would not be permitted to adduce any oral evidence whatsoever in any circumstance. The petitioner, therefore, on 15-11-1976 could not be credited with the knowledge that he would not be permitted to adduce any oral evidence whatsoever in any circumstance. As such knowledge could not be attributed to (sic) cannot be held to have waived his right to adduce further evidence or to have acquiesced in the illegal procedure. In Manak Lai V/s. Dr. Prem Chand Singhavi, ( AIR 1957 SC 425 ), Gajendragadkar, J. (as he then was) speaking for the Supreme Court observed as follows : "waiver can be inferred only if and after it is shown that the party know about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M R. has observed in Vayuyan V/s. Vyuyan, (1861) 30 Beav 65 at p 74 : 54 ER 813 at p 817 (E) waiver or acquiescence, like election, proposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim". Further, I do not think, an inference of acquiescence by the petitioner in the illegal procedure can be drawn from the mere circumstance that the petitioner did not come up in revision against the order dated 15-11-1976. Under section 397 of the Code, no revision lies against an interlocutory order. The decisions of the Supreme Court explaining the true import of the expression interlocutory order in section 397 of the Code were not yet available or widely known and in these circumstances, the petitioner may well have refrained from filing a revision against the order, dated 15-11-1976 in the belief that it was an interlocutory order. 10. There is a further reason why this contention of Mr. Md. Khaleel, must fail. As I have pointed out earlier, in the case relied upon by Mr. Md. Khaleel, the impugned order was held to be valid. No decision has been brought to my knowledge in which the impugned order was held to be a nullity or had been passed in contravention of the principles of natural justice and still the petitioner was not permitted to impugn that order because he had not come up in revision immediately against that order and had chosen to wait till the final order in the case was passed. In Msi. In Msi. Dimla Devi v, Shobhanath Nabmarik, (1975 Bihar Bar Council Journal, 246) relied upon by Mr. Md. Khaleel, it was held that the irregularity namely, not stating the grounds on which the Magistrate was satisfied about the existence of an apprehension of breach of the peace in the initial order under section 145 of the Code, did not make the initial order without jurisdiction or illegal. In Shibnarayan Das V/s. Satyadeo Prasad, (AIR 1943 Pat 44) the initial order, the legality of which it was held that party taking the chance of favourable decision could not impugn after the passing of the final order, was held to be an order with jurisdiction. As I have said earlier, it is a condition precedent to the meaning of a final order under section 145 of the Code that the Magistrate must receieve all evidence as may be produced by the parties and, therefore, when he passess ah order without receiving all the evidence that may be produced, the order would be without jurisdiction. As was pointed out in Union of India V/s. T. R. Verma, ( AIR 1957 SC 882 ) the rules of natural justice require. that a party should have opportunity of adducing all the relevant evidence on which he relies. A decision given in contravention of the principles of natural justice is a nullity. In State of U. P. V/s. Mohammed Nooh, ( AIR 1958 SC 86 ), Sri Das, C. J. (as he then was) speaking for the Supreme Court observed : "if an inferior court acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fairplay the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or Tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was ; had to it, it confirmed what ex fade was a nullity for reasons of aforementioned". According to this decision, therefore, an order passed by a court or tribunal which conducts the proceeding before it in a manner which is contrary , to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fairplay is ex acie a nullity. 11 In the present case, not only the second party was not given an opportunity of adducing oral evidence, he was discriminated against, inasmuch as the oral evidence of one person ,on behalf of the. first party was received arid relied upon by the learned Magistrate. The procedure adopted by" the leacnecl magistrate was in flagrant contravention of the statutory provisions. It was contrary to the rules of natural justice and a! I accepted rules of procedure and shocks or sense of fairplay and is, therefore, the "impugned order a nullity, and even if there had been any acquiescence, although I have held there was not, that acquiescence could not prevent the parties from impugring the order passed in such a proceeding. I am, therefore, unable to hold that in the cricumstances of the case, the petitioner may not be permitted to impugn the final order passed on the ground that he was not given an opprtunity to adduce evidence. The impugned order must, therefore, be set aside. 12. I would, accordingly, allow the application, sot aside, the. impugned order passed by the court below under section 145 of the Code as also, the order dated 15-11-1976 of the learned Magistrate and remand the case to the court below for fresh decision in accordance with law from the stage at which the case was on 15-11-1976 except to this extent that the documents filed on behalf of the parties subsequent to 15-11-1976 shall continue to be the record. Application allowed.