Nagendra Prasad Singh, J.

The petitioners in this revision application were members of the first party to a proceeding under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code'), which has been decided in favour of the members of the Second Party-opposite party.

2. It appears that the learned Sub-divisional Magistrate Khagaria, initiated the aforesaid proceeding under section 145 of the Code by his order, dated the 24th November, 1967 and attached the subject matter of dispute. The proceeding related to 20 bighas 1 katha and 9 dhurs of land situate in village Agrahan in the district of Monghyr, which gave rise to Case No. 457 (M) of 1967 and was transferred to another Magistrate for disposal. Both p8rties filed their written statements, documents and affidavits. The hearing of the proceeding was being adjourned from time to time and ultimately on the 10th October, 1969 a petition was filed on behalf of the petitioners stating therein that one Bachchu Lal alias Brijnandan Prasad should be made a party to the said proceeding as had been ordered on the 21 st December, 1967. The learned Magistrate heard the parties, and, after a perusal of the records, observed that the said Brijnandan Prasad alias Bachchu Lal was a necessary party. He also observed that, in the order, dated the 24th November, 1967, while drawing up the proceeding under section 145 of the Code, the then Magistrate had not mentioned that he was satisfied that there was a likelihood of a breach of the peace for possession of the disputed lands, which was a vital defect in the proceeding likely to vitiate the final order to be passed therein. Towards the concluding portion of the order, he said as follows:-

"This 145 Cr. P.C. proceeding was started on hearing in 107 Cr. P.C. proceeding between the parties and there was a police report in that case bearing no. 491M/1966. I am, therefore, satisfied that there is a likelihood of breach of peace for the possession of plot 216, 216/1, 216/4 of khata 1 and 294/2, 294/4 and 329/2 of khata 136 of village Agrahan with area as already mentioned in pervious proceeding. I, therefore, order that a fresh proceeding u/s 145 Cr. P. C. be drawn up including name of Brijnandan Pd. alias Bachchu Lal s/o Devan Lal of Neknam tola P. S. Barahra Dist. Sahabad at present mouza Agrahan P. S. Chautham among second party. The present proceeding is dropped. A separate number be given to the present proceeding.

As the matter appears emergent the land is attached according to provision to section 145 (iv) Cr. P. C. Put up on 4. 11. 69, with S. R. of notice of Brijnandan Prasad, Fresh S. R. of spot will not be required."

3. After the aforesaid order, the case was numbered as 359M of 1969. In the aforesaid order, dated the 10th October, 1969, there was no direction to the parties to file any fresh written statement or affidavit. Ultimately by the impugned order, the learned Magistrate declared the members of the second party-opposite party to be in possession of the lands in dispute. It is the admitted case of the parties that the written statements, affidavits and documents filed in pursuance of the order dated the 24th November, 1967 were relied upon by the parties during the hearing of the proceeding in question.

4. Learned counsel for the petitioners has submitted that the order in question declaring the members of the second party to be in possession of the lands in dispute on the date of the proceeding is vitiated in as much as the date of the proceeding will be the 10th October, 1969, when a fresh proceeding was initiated, on which date the lands in dispute were under attachment in the earlier proceeding bearing Case No. 457 (M) of 1967, and as such, the members of the second party could not be deemed to be in actual physical possession of the lands in question on that date. Learned counsel also submitted that the learned Magistrate, having drawn up a fresh proceeding on the 10th October, 1969, could