( 1 ) THESE Rules raise two procedural questions of some practical importance. Both are questions under S l45, Criminal P. C.

( 2 ) THE disputed property is a small piece of land, about half a cottah. in area, and includes a mud-built house standing thereon. It is really the northern adjunct to the ancestral homestead of one Bepin Behari Mondal and was purchased in the Bengali year 1327 by a deed executed in favour of one of his sons, named Jogesh. Jogesh pre-deceased his father, leaving a widow, named Surabala or Surendrabala. After the death of Bepin, his surviving sons, Jitendra Nath and Harendra Nath, appear to have made some kind of a partition of the homestead, Jitendra taking the northern portion and Harendra the southern. In June 1950, one Kshudiram, who is the Petitioner in these Rules, obtained a transfer of the disputed property from Surabala who obviously dealt , with it on the basis that it was a self-acquired property of her husband. Jitendra and Harendra dispute that claim and their case is that the property was really acquired by the father Bepin, though Harendra is not very definite. After his 'purchase, Kshudiram exercised certain acts of possession with the effect of dispossessing Jitendra, and Harendra who is alleged to have been aiding Kshudiram, himself did certain acts with the same effect. It was out of those doings that the present proceedings arose.

( 3 ) ON 8th August 1950, Jitendra lodged an information at the Mangalkote Police Station to the effect that his brother Harendra was trying to shut him out from his portion of the homestead by closing down the communicating door between the two portions and that there was an apprehension of a breach of the peace. He did not mention Kshudiram, but the latter appeared during the police enquiry which followed and asserted his claim to the disputed property on the basis of his purchase. The police appear to have thought that the dispute was really one between the two brothers on one side and the stranger-purchaser on the other and they recommended initiation of a proceeding under Section 145, Criminal P. C, on that basis, as also attachment of the disputed property and an order under Section 107, Criminal P. 0. , upon the two brothers. On receipt of the police report, the Sub-Divisional Officer of Katwa, Sri A. B. Eudra, drew up a proceeding under Section 145 on 30th August 1950 against Jitendra and Harendra as the First Party and Kshudiram as the Second Party. An application made by Jitendra that Harendra should be transferred to the category of the Second Party was rejected on 1st November 1950.

( 4 ) ON 7th November 1950, the case was transferred to the file of Sri S. N. Banerjee, but after that officer had only made a formal order, the Sub-Divisional Officer withdrew the case to his own file on 27th November 1950, and transferred it to Sri C. L. Chaudhuri, Magistrate, 1st Class, who then proceeded with it. Harendra did not claim possession of the disputed property and the contest was between Jitendra who examined eight witnesses and Kshudiram who examined five. The learned Magistrate held that Jitendra had been dispossessed on 8th August 1950, which was within two months of the date when the proceeding was drawn up and on 22nd February 1951, he passed the final' order in the following terms:"i therefore declare that Jitendra Mondal of the 1st Party is entitled to the possession of the proceeding land with the hut thereon, until evicted therefrom in due course of law and I forbid all disturbance of such possession until such eviction. "

( 5 ) THE learned Magistrate obviously proceeded under the first proviso to Section 145 (4), but he did not make an order for the restoration of possession to Jitendra.

( 6 ) ON 26th February 1951, Jitendra made an application to the learned Magistrate for restoration of possession and on the same date Kshudiram applied to the Sessions Judge of Burdwan for a reference to this Court against the learned