A Magistrate must indicate apprehension of a breach of peace in an order initiating a proceeding under Section 145 of the Code of Criminal Procedure. Failure to do so renders the proceeding without jurisdiction.

M.P. Verma, J.

This petition in revision has been directed against an order of Shri K.K. Pathak, Magistrate First Class, Monghyr, dated 3rd February, 1969, by which he declared the possession of the members of the second party in respect of the dispute lands in a proceeding under Section 145 of the Code of Criminal Procedure.

2. The dispute between the parties appears to be a chronic one and so a brief history may be given. The disputed lands are the following:

Plot No. 667 area 2.02 acres

Plot No. 670 area 1.91 acres

Plot No. 731 area 0.46 acres

out of 1.50 acre

These plots appertain to Khata No. 3 under Tauzi No. 2301 in village Chorwar Police Station Barbigha, in the district of Monghyr. Thus the total area in dispute was 4.39 acres, roughly equivalent to about 6 bighas.

3. The case of the first party to the proceeding is that the disputed lands were settled with him and his brother, Abdul Khair, about 20 years ago, by the 16 annas landlady of the tauzi. These lands were her bakasht lands. The petitioner applied for commutation of rent under Section 40 of the B.T. Act and the rent was commuted from bhaoli to naqdl. The landlady was not pleased with this move of the petitioner and she filed an appeal before the Additional Collector who set aside the order of commutation and remanded the case on the ground that the notice was not properly served on the landlady. When the case was sent back-on remand, the landlady and the petitioner entered into a compromise on the 23rd February. 1953. By this compromise the petitioner was accepted to be in cultivating possession of the lands and the rent was commuted. After this commutation, the petitioner amalgamated the disputed lands with other undisputed lands of his. The landlady also accepted rent from the petitioner. But subsequently she raised some objection and challenged the compromise itself. The petitioner, therefore, brought a title suit for a declaration that the rent of the lands was commuted into cash by virtue of the compromise. By that time the members of the second party had come in the picture and so they alia were made defendants second party in that suit. The landlady contested the title suit on the ground that commutation had not been made in respect of these plots, but they were subsequently interpolated in the compromise petition. Defendants second party also raised objection that they had taken the lands in settlement from the landlady and they were in possession thereof. The trial court (First Additional Subordinate Judge, Monghyr) decreed the suit in part and further observed that it was not necessary to go into the question of title as between the plaintiff of the suit (first party) and defendants 2 to 4 (second party). So that question was left open. The petitioner preferred First Appeal No. 520 of 1956 to this court, which was heard and disposed of by the Hon'ble Mr. Justice Mahapatra, who decreed the suit in its entirety and came to the conclusion that there has been a valid commutation of rent in respect of the plots in suit. Towards the end of the judgment his Lordship observed that the matter had been left open between the defendants second party, the plaintiff of the trial court and so that should not be disturbed. There was a Letters Patent Appeal No. 87 of 1960 in which compromise was effected and according to Order No. 22 dated the 19th February 1965, the claim of the plaintiff respondents of that appeal (i.e. petitioner and heirs of his brother) was admitted. Thereafter, the parties fought more than one case under Section 144 of the Code of Criminal Procedure. On a police report dated the 1st December, 1959, there was a proceeding under Section 144 of the Code of Criminal procedure which was later converted into a proceeding under Section 145 of that Code. That proceeding was decided in favour of the first party. The second party came in revision before this Court in Criminal Revision No. 1405 of 1965, which was heard by the Hon'ble Mr. Just