The Magistrate has jurisdiction to interfere under Sec.145, Criminal P. C. even after a recent delivery of possession, but must give due weight to the recent delivery of possession while disposing of the proceeding.

Narayan, J.

1. This is a reference by Mr. Ramjivan Sinha, first Additional Sessions Judge of Patna recommending that the order of the learned Subdivisional Magistrate of Dinapore drawing up a proceeding under Sec.145, Criminal P. C. be set aside.

2. The disputed property is 21 bighas of land situate in mauza Balipankar, Police station Paliganj, district Patna. This land was given in usufructuary mortgage to two persons named Jamuna Prasad Singh and Saraswati Prasad Singh by virtue of two registered documents dated 31-3-1944 which had been executed by Ramnandan Prasad Narayan Singh, the adoptive father of Krishnanandan Prasad Narayan Singh, and his brother Shyamnandan Prasad Narayan Singh. On 27-6-1949 the mortgages were assigned to Bharath Singh and others by a registered document. On 26-5-1950 Krishnanadan Prasad Narayan Singh deposited the mortgage money under Section 83, T. P. Act, and notices with regard to the deposit were served on Bharath Singh and others who have been described in the letter of reference as opposite party Nos. 1 to 8. In July 1950 Sheonandan Singh and others who have been referred to as petitioners in the letter of reference took settlement of the land in dispute from Krishnanandan Prasad Narayan Singh and Shyamnandan Prasad Narayan Singh by virtue of two registered Mukarrari deeds dated 5-7-1950 and 14-7-1950.

As In spite of the deposit opposite party Nos. 1 to 8 did not give up possession of the land Sheonarayan Singh and others instituted a suit for redemption in the Court of the Third Subordinate Judge, Patna (Title Suit No. 132 of 1950) and they prayed for a decree for khas possession in their favour. This suit was decreed on 31-7-51, and in execution of the decree possession was delivered to Sheonarayan Singh and others on 19-8-1951. Bharath Singh and others then filed an application which was labelled as an application under Sec. 47 and Section 151, Civil P. C. and they contended inter alia that the delivery of possession was a nominal one and that as a result of it possession had not been transferred to the decree-holders. The objections with regard to the delivery of possession were dismissed, but the learned Subordinate Judge observed as follows: The legal objections, therefore, fail. The serving peon has reported that the possession has been delivered to the judgment creditors who also support his report. In the circumstances I do not think it would serve any useful purpose By Investigating whether in fact possession has been delivered or not. If the judgment-debtors are in possession they are free to take advantage of it.

3. In November, 1951, Bharath Singh and others lodged an information with the Paliganj Police in which they alleged that there was an apprehension of breach of peace. The Police submitted a report to the learned Subdivisional Magistrate for taking action under Sec.144, Criminal P. C. and a notice under Section 144, Criminal P. C. was issued to all the parties concerned restraining them from going over to the land. On 28-2-1952 the learned Magistrate ordered that "the matter should be determined under Sec.145, Criminal P. C." and he directed the issue of notice to the parties and an attachment of the land & its produce. Sheonarayan Singh & others then filed an application before the learned Sessions Judge for making a recommendation to this Court that the order of the learned Magistrate be set aside and the application was heard by the learned Additional Sessions Judge Mr. Ramjivan Sinha.

4. The learned Additional Sessions Judge is of the opinion that the learned Sub Divisional Magistrate should have respected the delivery of possession which had been made under the orders of the Court and should have helped Sheonarayan Singh and others in retaining possession of the property and he has accordingly recommended that the entire order of the learned Magistrate should be set aside.

5. Because of the divergence of judicial opinion, with regard to the effect of delivery o