Judgment R. P. Sinha, J. 1. -this is an application in revision by the petitioner who was the second party in the court below against the final order passed on 4th october, 1978 by the Executive Magistrate, Bhagalpur, declaring the possession of the first party who is opposite party here in a proceeding under section 145 of the Code of Criminal Procedure. 2. The learned Magistrate in his exhaustive judgment has been frank enough to hold at the concluding portion of it as follows :- "in sum total the witness on both sides failed to prove possession of either party over the land under proceeding". Mr. Gorakh Nath Singh, learned counsel for the petitioner, has made a capital out of this observation of the learned Magistrate and has rightly submitted that when the learned Magistrate himself was satisfied that the witnesses of both the parties have failed to prove the possession over the land in dispute, the finding of possession recorded by the learned Magistrate in favour of the first party obviously based upon some documents like sale deeds, survey entries and rent receipts cannot be sustained, as the documentary evidence may be taken in support of the oral evidence in the form of affidavit in this case, but they by themselves cannot prove actual physical possession over the lands in dispute between the parties. In support of his argument he has referred to a decision of this Court in the case of Arjun Singh and others V/s. Singheshwar choudhary, AIR 1960 Patna 513), where Kanhaiya Singh, J. (as he then was), if I may say so with respect has very rightly observed as follows : - "if the affidavits are ignored, it is difficult to understand on what evidence the question of possession will be decided. Both the parties have no doubt filed documents and there may be some circumstances but by themselves they are inadequate to establish possession. They may be taken into consideration in support of one or (he other version given by one of the other party but, the documents by themselves, can it and do not establish possession. For establishing possession one has to refer to the affidavits". 3. Mr. They may be taken into consideration in support of one or (he other version given by one of the other party but, the documents by themselves, can it and do not establish possession. For establishing possession one has to refer to the affidavits". 3. Mr. Tara Kant Jha, learned counsel appearing on behalf of the opposite party, has very strenuously argued that the Magistrate, in the circumstances of this case, could not have done anything else than to declare possession of the first party on the basis of the documents which were to be taken as evidence of possession as the evidence of the witnesses in the form of affidavits of both the parties were equally unsatisfactory and were of no help in deciding the question of possession. According to him, in such circumstances, the learned Magistrate was certainly entitled to decide the question of possession on the basis of the documents filed by the parties and that is what he has done in this case. 4. In deciding the question of possession in a proceeding under section 145 of the Code of Criminal Procedure the Magistrate has not to decide as to who is the person who is entitled to possession or as to who has got the title in respect of the land in dispute. He is to decide, irrespective of the title of the parties, as to who is in actual physical possession of the land and for actual physical possession of the land in dispute documents by themselves will never be sufficient proof. The evidence of the witnesses is absolutely necessary. The evidence may be considered and accepted or rejected with reference to the documents that the parties choose to file in support of their claim to corroborate the oral evidence in the form of affidavits. The documents by themselves without the help of affidavits are not sufficient to decide the question or actual physical possession. In my opinion, therefore, the impugned order of the learned magistrate has got to be set aside and the case remanded for deciding the question of possession afresh. 5. The documents by themselves without the help of affidavits are not sufficient to decide the question or actual physical possession. In my opinion, therefore, the impugned order of the learned magistrate has got to be set aside and the case remanded for deciding the question of possession afresh. 5. In the result, the application is allowed, the impugned order is set aside and the case is remanded for deciding the question of possession afresh on the basis of the evidence of witnesses in the form of affidavits which are on the record besides other documentary evidence in support of the claim of the parties. Application allowed.