Judgment : This revision is against the order of the learned Executive First Class Magistrate, Pollachi in M.C.No. 18 of 1991 under Sec. 145, Code of Criminal Procedure. .2. The respondent herein moved before the Executive I Class Magistrate Pollachi, with a petition under Sec. 145, Code of Criminal Procedure to protect her possession on the allegation of interference by the respondent before the Magistrate. The Executive Magistrate passed preliminary order under Sec. 145(1), Code of Criminal Procedure and also called upon both parties to file their documents to support their claim of possession and after the filing of the counter by the petitioner herein who was the counter-petitioner before the Executive Magistrate, the Executive Magistrate passed the order in favour of the respondent herein with a direction that his possession shall not be disturbed by anyone including the petitioner herein. It is against the order of the Executive I Class Magistrate, this revision is filed challenging its validity. 3. The learned counsel appearing for the revision petitioner would argue that the learned Executive I Class Magistrate has passed final order under Sec. 145(6) of the Code without giving an opportunity the counter-petitioner to produce his evidence and further the learned Executive I Class Magistrate misconceived the fact from the counter filed by the counter-petitioner as though he had admitted the possession of the entire 51 cents by the petitioner and therefore the wrong assumption of possession by the petitioner has misled the Executive I Class Magistrate to pass an erroneous order, even without giving an opportunity to produce the evidence of the counter-petitioner and therefore the order of the Executive I Class Magistrate has to be set aside. .4. The petitioner and the counter-petitioner are brother and sister and admittedly the property in dispute, viz., T.S.No. 18/4A3 measuring about 51 cents, belonged to the father of these parties Dr. Sankunni Kallath, who expired on 4. 1971. It is the contention of the petitioner before the Executive I Class Magistrate, that the property tax was transferred to her same at the instance of her father even during his lifetime and she is in possession of the entire 51 cents and she is paying the property tax from 1971 onwards. Admittedly, she has put up a construction in a portion of the land. Admittedly, she has put up a construction in a portion of the land. The counter-petitioner in his counter has stated that the petitioner viz., his sister, had misled the Municipality to get the sanction of the plan for the construction of the house taking advantage of the transfer of her name in the property tax demand register and though she has constructed a building in a portion, she is trying to encroach upon the other portion and she is not in possession of the vacant land. He would also state that his father had executed will dated 17. 1989 and he has given direction to administer this property and the petitioner is not in possession. Under Sec. 145(1) of the Code, the Executive Magistrate has to pass the preliminary order and after service of preliminary order under Sec. 145(3) of the Code, the Magistrate then call upon the parties to produce there evidence if any, to prove their possession without reference to merits or right of the merits to possess and pass the final order under Sub-sec. (6). Under Sub-sec. (4), it is mandatory on the part of the Magistrate to hear the parties, receive all such evidence as may by produced by them, take such further evidence if any as he thought it necessary for deciding the question of possession of the subject-matter of the dispute. From the file of the Executive Magistrate, I am able to see that the counter statement was filed by the counter-petitioner, who is the revision petitioner herein, on 7. 1991, and he requested time for filing more information regarding the property in dispute but the Executive Magistrate rejected the request of the counter-petitioner and started to here the parties of both sides and adjourned the case for final orders to 17. 1991. .5. The learned counsel for the revision petitioner argues that after the filing of the counter on 7. 1991, the revision petitioner expected a reasonable time for production of his evidence, both documentary and oral, to prove his possession in pursuance of the Will executed by his father dated 17. 1991. .5. The learned counsel for the revision petitioner argues that after the filing of the counter on 7. 1991, the revision petitioner expected a reasonable time for production of his evidence, both documentary and oral, to prove his possession in pursuance of the Will executed by his father dated 17. 1969, but the learned Executive Magistrate, without giving the opportunity to produce the evidence, had simply hear the parties referring to their contentions in the petition and counter, and adjourned the case for final as opportunity was not given to produce the evidence of the revision petitioner herein, the order of the Executive Magistrate is not sustainable. As mentioned above on the day viz. 7. 1991, when the counter was filed the Executive Magistrate after perusing the counter, had heard the arguments of both sides and in the docket order, the Executive Magistrate has mentioned that the request of the revision petitioner for adjournment for filing more information was rejected as he has not furnished any list of documents and therefore he heard the arguments on the same day and adjourned to 17. 1991 for passing the final order. Under Sec. 145(4) of the Code, the Executive Magistrate, after the filing of the counter, shall receive all such evidence as may be produced by the parties. In this case, even though the counter petitioner requested time to produce his evidence, he did not give the opportunity for the production of the evidence by the counter petitioner but closed the enquiry on the very same day when the counter was filed and reserved it for the final orders to be passed on 17. 1991. This approach of the Executive I Class Magistrate, Pollachi, is not in accordance with the provisions of the Code. As the counter-petitioner has stated that he is entitled to administer the disputed property under the Will executed by his father, who was the original owner, and the petitioner was not in possession of the entire property, except the portion on which she put up the construction, it would have been proper on the part of the Executive Magistrate to give same time to produce the evidence on both sides. In paragraph 5 of the final order, the Executive Magistrate has observed that the counter-petitioner has not rebutted the contention of the petitioner that she is in actual possession of 51 cents in the disputed property and also has not rebutted or challenged the payment of the assessment tax by the petitioner and that would amount to implied acceptance of the possession of 51 cents by the petitioner since 1971 and payment of the tax by her to the Municipality and also the construction and possession of the residential building in this property by the petitioner. In the counter filed by the counter-petitioner, he has disputed the possession of the petitioner over 51 cents and it is specifically alleged in the counter that she is trying to annexed the adjacent land, taking advantage of the construction in a portion of the property. Therefore the counter-petitioner has admittedly only the construction of a building by the petitioner in a portion of the disputed property. This will not amount to the admission of her possession of the entire 51 cents. Therefore, under the wrong impression of admission of possession of the entire property by the petitioner, it appears that the Executive I Class Magistrate had proceeded to pass the final order even without giving opportunity to produce evidence by both sides. This conduct of the Executive Magistrate will not amount to enquiry under Sec. 145, Code of Criminal Procedure. No document of oral evidence was placed before the Executive Magistrate and only if both parties had stated that they had no documents or oral evidence on their side in proof of their contention, the Executive Magistrate can proceed to decide the dispute on the basis of their version in the petition and the counter petition. But in this case though the counter-petitioner, who is the revision petitioner herein, requested time to produce evidence, the Executive Magistrate rejected the request and has passed the final orders for his perusal of the petition and the counter petition, which will amount to enquiry as contemplated under the Code. The Executive Magistrate could have given some time to both parties to produce their evidence both oral and documentary as this opportunity was not given to parties, specially to the revision petitioner who requested time, the order passed by the Executive Magistrate cannot be treated as an order on an enquiry. The Executive Magistrate could have given some time to both parties to produce their evidence both oral and documentary as this opportunity was not given to parties, specially to the revision petitioner who requested time, the order passed by the Executive Magistrate cannot be treated as an order on an enquiry. Therefore, the order of the Executive I Class Magistrate is liable to be set aside. 6. In the result, the revision is allowed. The order of the Executive I Class Magistrate is set aside and the Executive Magistrate, Pollachi, shall restore the case to file and pass final order after enquiry as contemplated under the Code in the light of the observations made above.