A proceeding under Section 145 of the Code of Criminal Procedure can only be started if the Magistrate is satisfied that there exists an apprehension of the breach of peace and in the case of joint possession, no effective order forbidding the other side to go upon the land can be passed.

B. N. Jha, J. - This application by the first party in a proceeding under Section 145 of the Code of Criminal Procedure is directed against the order dated January 16, 1968, passed by the Sub-divisional Magistrate, Banka, starting the proceeding in question and attaching the disputed land under Section 145 (4) of the Code.

2. The Sub-divisional Magistrate, Banka, started a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as the Code) on November 30, 1967 on the basis of a police report dated November 29, 1967, as there was an apprehension of the breach of peace and restrained the petitioners and the opposite party from going upon the disputed land. As in the opinion of the Sub-divisional Magistrate a bonafide land dispute existed between the parties, the proceeding was converted into one under Section 145 of the Code on January 16, 1968. The disputed land appertains the khata no. 171 of village Pabey, police station Amarpore district Bhagalpur. The total area of the land of khata no. 171 was 23.83 acres which belonged to the family of the petitioners. The entire land of khata no. 171 was sold in an auction on June 16, 1931 and was purchased by three persons; namely, Kotuhal Rai, Gharo Rai and Bhoura Mahto. The petitioners got back 4.98 acres of land from the three auction purchasers by a sale-deed dated November 19, 1955. Again the petitioners obtained two-third share of Kotuhal Rai and Gharo Rai in respect of the remaining area of 18.87 acres of land by a registered Kebala dated July 2, 1958. Bhoura Mahto had one-third interest in the remaining area of 18.87 acres and this area of land i.e. 18.87 acres of khata no. 171 is the subject matter of dispute in the proceeding under Section 145 of the Code. According to the case of the petitioners, their family continued in possession of the entire land of khata no. 171 though the land was sold to the auction purchasers in an auction sale. The petitioners obtained registered sale-deeds in respect of substantial portion of the land of khata no. 171. Only the interest of Bhoura Mahto i.e. one-third in 18.87 acres of land could not be purchased by the petitioners but as the land belonged to the family of the petitioners they continued in possession in spite of the auction sale. The opposite party is the descendant of Bhoura Mahto who claims title and possession in respect of one-third share of the disputed land measuring 18.87 acres.

3. Opposite party, Jagdambi Mahto filed Title (Partition) suit no. 93 of 1966 in the court of Subordinate Judge, Bhagalpur, on July 19, 1966, for the partition of his one-third share in respect of the disputed land. He filed an application for the appointment of a receiver on November 13, 1967 on the ground that the petitioners were going to cut paddy from the joint land. The petitioners appeared and filed rejoinder objecting to the appointment of the receiver and asserted exclusive possession over the entire disputed land. The learned Subordinate Judge held that the plaintiff was not in actual cultivating possession of the land and the paddy crop had been grown by the petitioners and in view of this finding, he did not think it desirable to appoint a receiver and dispossess the petitioners from the suit land by ordering the appointment of a receiver in the case. He, accordingly, rejected the application of the plaintiff i.e. the opposite party for the appointment of a receiver by his order dated December 5, 1967. The opposite party has filed an appeal in the court of the District Judge, Bhagalpur against the aforesaid order of the learned Subordinate Judge, rejecting the application for appointment of a receiver, which is still pending there. The petitioners alleged that having failed to obtain possession by appointment of a receiver in respect of the disputed land, the plaintiff opposite party came before the Criminal Court for obtaining possession over the disputed land. It was further alleged that Bhoura Maht