Bapna, J.—This is a revision against an order of the Sub-Divisional Magis-trate, Ballabhnagar, dated 8th February 1951. A revision to the Additional Sessions Judge, Udaipur was dismissed on 25th April, 1951.

2. The proceedings started on a complaint by Kishan Lal that he was in possession of four bighas of land in Kheroda known by the name of Maleti and had raised jwar crop thereon, but the opposite party, in order to take possession of that land, had destroyed the crop and was bent upon taking possession of the same, and there was likelihood of a breach of the peace. In the same application he prayed that the land be attached until the decision of the proceedings. Learned Magistrate directed issue of notice, and on notice being issued, a written statement was filed by the opposite party Mohan Singh who asserted his own lawful possession. Evidence was recorded and the Magistrate by an order dated 8th February 1951, declared that Kishan Lal was in possession of the field on the date of the preliminary order, and he forbade Mohan Singh from interfering with that possession until eviction of Kishan Lal in due course of law. On behalf of Mohan Singh, a revision was filed to the Court of Sessions Judge, Udaipur on the grounds that the preliminary order recorded by the Magistrate and the notice issued in pursuance thereof were not in accordance with law. The learned Addl. Sessions Judge, who disposed of the revision, observed that the orders of the learned Magistrate were not in accordance with law but no prejudice had been caused to Mohan Singh. He considered that the order of the lower court was not one which should be interfered with. The petition was accordingly dismissed.

3. Learned counsel for the petitioner Mohan Singh urged that the foundation of the proceedings under sec. 145 Cr. P. C. was the preliminary order and if the conditions required by law to be fulfilled before drawing up that order are not so done and the notice issued thereunder is not in accordance with law, the subsequent proceedings are invalid and should be quashed. Reliance was placed on Narotam vs. Kamlabai (1951 R. L. W. 55), and Bhairon Bux vs. Rajmal (1952 R. L. W. 10).

4. Learned counsel for the opposite party Kishan Lal, however, urged that although there was certain defect in the orders of the lower court, no prejudice had been caused as the subse- quent proceedings were entirely in accordance with law and were not invalid. Reliance was placed on Kapoorchand and another vs. Suraj Prasad (1933 Allahabad 264). The complainant in the present case, in an earlier portion of the complaint gave all the details required for initiation of the proceedings under sec. 145 Cr.P.C. In the later portion, a request was made for attachment of the property till decision of the matter which should really be a matter of separate application for action under proviso to sub-sec. (4) of sec. 145. Curiously enough, the reference in the petition is to sec. 146 Cr. P. C. which of course can only be made applicable when the court is unable to come to the conclu- sion as to who was in actual posses- sion of the property on the date of the order, and in which case none of the parties can be declared to be in possession of the property. In view of the fact that the complainant set up his own possession in an earlier portion of the petition, he was only asking for an attachment, pending decision, in the case of an emergency. The Magistrates order on the petition was as follows :

"After perusing the affidavit, a notice be issued to the non-petitioner (Mohan Singh) as to why the land be not attached. His reply should be presented on nth September, 1950."

The notice in pursuance of this order was as follows :

"In the above case, an application has been presented by Kishan Lal that he is in possession of four bighas of land known as Maleti and had raised thereon jwar crop which the opposite party (Mohan Singh) had destroyed and that he would produce his evidence of possession, and the land

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