G. B. PATNAIK, J.

( 1 ) FIRST party member in a proceeding under section 145 of the Code ofcriminal Procedure (hereinafter referred to as the Code) is the petitioner against the revisional order of the Sessions Judge. The learned Sessions Judge by the impugned order has set aside the order of the Magistrate and dropped the proceedings under section 145 of the Code mainly on the ground that the parties being joint and there being no partition amongst them the proceeding under section 145 of the Code is inappropriate.

( 2 ) ADMITTEDLY, the petitioner and opposite parties are brothers. It is the case of the petitioner first party that there was a partition amongst the brothers during the life-time of their father and the disputed Bhogara lands fell to the petitioners share whereas the raiyati lands belonging to the father fell to the share of the opposite parties. Since the opposite parties created disturbance in the possession of the petitioner after the death of their father, the petitioner approached the Magistrate for initiating a proceeding under section 145 of the Code. The case of the opposite parties-second party members, on the other hand, was that there was no partition amongst the brothers and, therefore, each member of the joint family must be assumed to be in possession of the entire joint family property.

( 3 ) THE learned Magistrate on the materials placed before him came to the conclusion that none of the witnesses produced by the first party member satisfactorily proved the possession of the petitioner in respect of the case land. He also entirely discarded the evidence adduced on behalf of the second party members-opposite parties. But as rent receipts were produced on behalf of the first party-petitioner, the Magistrate came to the conclusion that the petitioner was in possession of the land on the date of the preliminary order. On the question of partition, though there was no clear finding, yet, the Magistrate accepted the case of oral partition as alleged by the first party petitioner.

( 4 ) THE revisional authority, however, on a thorough discussion of the evidence came to the conclusion that there was no partition by metes and bounds and the first party failed to establish that Bhogara lands fell to his share in the so called partition. In coming to the aforesaid conclusion, be relied upon the oral evidence as well as the fact that first party himself had filed Title Suit No. 6 of 1972 for partition which suit was ultimately dismissed for default. After coming to the conclusion that the family continues to be joint and the properties are joint family properties, the revisional authority dropped the proceedings since in his opinion a proceeding under section 145 of the Code is wholly inappropriate in respect of a joint family property.

( 5 ) MR. Ray, the learned counsel for the petitioner, contends that the finding of the learned Sessions Judge that the property is a joint family property is contrary to the evidence on record. I do not find any substance in the aforesaid contention. The learned Sessions Judge has thoroughly scrutinized the evidence in this regard and relying upon the first partys own conduct of having filed a suit for partition wherein the disputed property was also included, came to the conclusion that there was no earlier partition as alleged by the first party. The finding being one based on an appreciation of the evidence on record and no infirmity in the same having been pointed out by the learned counsel for the petitioner, I am not inclined to interfere with the said finding.

( 6 ) MR. Ray, the learned counsel, next contends that a proceeding under section 145 of the Code being to find out only possession when there is an apprehension of breach of peace in respect of the same, the Sessions Judge was in error in dropping the proceedings merely on the ground that the property is joint family property. In support of the aforesaid contention, he places reliance on the decision of t