K.Dayal, J.

1. Criminal Reference No 111 of 1956 is a reference under Sec. 438 of the Code of Criminal Procedure by the Additional Sessions Judge, First Court, Gaya. The learned Judge has recommended that the order of the learned Sub-divisional Officer, Jehanabad, dated the 9th March 1956 be set aside and the proceedings under Sec.145 of the Code of Criminal Procedure initiated under that order be quashed.

2. The relevant facts are these : The lands covered under the proceeding measure 68.37 acres in village Lodipore appertaining to Tauzi No. 63S8. These lands were settled with the wife of one Ram Rajeshwari before 1951. In 1951, there was a proceeding under Sec.145 of the Code of Criminal Procedure between the petitioners who were the first party and the opposite party who there the second party in the proceeding. On the 3Dth October, 1952, the learned Magistrate declared the possession of the first party petitioners.

It was urged in the court below that, in the said proceeding, the parties were the same as in the present proceeding and the lands were also the same. This statement of fact was not challenged In the court below as incorrect. This order of the Magistrate in f