Ali Ahmad, J.

The members of the second party to a proceeding under section 145 of the Code of Criminal procedure have come up to this Court, challenging the final order passed in that proceeding against them.

2, The dispute relates to plots of different Khatas. According to the case as put forward by the first party opposite party, they had purchased the disputed lands from the members of the second party and Most. Budhani and Bulaki Mushar by different registered sale deeds. They claimed to be in peaceful possession or those• lands since their purchase. The case of the petitioners second party is that the disputed lands were settled with them by the State of Bihar, on the condition that they will utilise the lands for agricultural purpose and will not transfer the same to anyone. It is said by them that the lands settled with them by the State of Bihar have been in their cultivation and possession. It is further their case that the members of the first party opposite party and their friends played fraud with them, in as much as they persuaded the petitioners several times and induced them to put their thumb impression on some papers on the plea that hand pipes would be fixed in the vicinity of their houses and in this way the first party, in collusion with the clerks and deed writers, manufactured and fabricated farzi deeds, got the receipts endorsed and obtained the sale deeds from the Registry office without paying any consideration money. They further say that the aforesaid sale deeds always remained inoperative.

3. The proceeding was initiated by an order dated 10th of October 1975. It, therefore, had to be disposed of by the Magistrate in accordance with the provisions of Code of Criminal Procedure, 1973. Under the old Code, proceedings under section 145 had to be disposed of on perusal of the documents and affidavits filed by the parties. In the new codes a significant change has been made, fn as much as, to decide the proceeding on perusal of the statement put in by the parties and after receiving of such evidence that may be produced by them. The procedure, there• fore, of deciding the proceeding on perusal of the statements put in by the parties and the affidavits and documents filed by them has been given a go-bye. Witnesses have now to be examined and documents proved in accordance with Evidence Act. Unfortunately, the learned Magistrate and both the parties missed this aspect, and a large number of documents were filed by both the parties, according to the old Procedure. Those documents have been considered fully and relied upon by the learned Magistrate. It will be useful to quote, in that connection, the following lines from the order of the Magistrate.

“On perusal of the documents filed by both parties the allegation of the second party that the first party played fraud upon them and got the sale deeds executed on the plea of giving hand pumps etc, are baseless."

This finding, therefore, in my opinion, is based on inadmissible evidence.

4. Mr. Kailash Roy for the opposite party, appreciating the difficulty in his way, contended that in a proceeding under section 145, Courts are concerned only with possession of the disputed land and not with title. He, therefore, submitted that the finding regarding the rejection of the case of the petitioners be ignored. He also contended that the finding with regard to possession bas been recorded by the Magistrate after considering the oral evidence adduced by the parties that would be sufficient to dismiss this application. I must mention here that at one stage I felt persuaded to accept this argument, but on a closer scrutiny I find myself unable to accept the same. The manner in which proceedings under section 145 has now to be disposed of bas been laid down in sub-section (4) of section 145, and the parties are not allowed to lay down a different procedure for the disposal of the proceedings. I do not think, the procedure of waiver will apply in these circumstances. F