There is no finding by the Magistrate that any party was in possession before the locking of the building by the counter-petitioners. Nor could he give such a finding, as there were no materials which could properly be the basis of such a finding as no enquiry was made. It is the duty of the Magistrate to complete the enquiry under Sect. 145 of the Criminal Procedure Code in the proceedings started under it and a preliminary order passed (see Velayuda Kone v. Narayana Kone(1), and the cases cited therein). If the petitioner was not ready with his evidence, and showed no good cause for an adjournment, the Magistrate ought, at least, to have taken the evidence of the counter-petitioners. The order of the Magistrate is vacated and the case will be sent back to be disposed of according to law. It will be open to the petitioner, also to file a written statement and to adduce evidence at the new enquiry and the Magistrate will be bound to record and consider it.
K.V.SCase sent back.