A writ petition under Article 226 of the Constitution of India is maintainable to challenge an order passed under Section 145, Cr. P. C., but the petitioner cannot raise a disputed question of fact for the first time in the writ petition.

This petition was filed under Section 482, Cr. P. C. for quashing of the final order passed in a proceeding under Section 145, Cr. P. C. on an earlier date of hearing i. e. 13-9-90, an application was move by the applicants for converting the present petition under Article 226 of the Constitution of India in view of the Full Bench decision of this Court given in case of H. K. Rawal v. Midhi Prakash, 1989 ALJ 73. The applicants have supplied requisite court-fee. The application was allowed and the petition has been heard as a writ petition.

2. The Police of P. S. Balua gave a report on 22-6-79 before the S. D. M. Chandauli, Varansi that there was apprehension of breach of peace between the petitions on the one hand and respondent Nos. 2 to 4 on the other hand, with regard to possession over certain immovable property. On being satisfied that there was apprehension of breach of peace, learned S. D. M. passed a preliminary order under Section 145 (1), Cr. P. C. on 28-6-79 and directed the parties to appear on 4-7-79 and lead evidence in support of their claim. The disputed property was described as plot No. 780/2, Bamboo clumps situate in plot No. 780/3, plot No. 763 and one Jack fruit tree situate in plot No. 756. The parties appeared before the learned Magistrate and, adduced oral and documentary evidence in support of their case. After consideration of the evidence, learned Magistrate held that first party (respondent Nos. 2 to 4) was in possession over the disputed property on the date of passing of the preliminary order and two months prior thereto. He accordingly restrained the second party (petitioners) from interfering in the possession of the first party over the disputed property till the decision of a competent Court regarding title of the parties.

Against the aforesaid judgment and order dated 27-7-79 of the S. D. M. , Chandauli, the second party filed a revision but the same was also dismissed by the learned 3rd Additional Sessions Judge, Varanasi

by his judgment and order dated 11-11-87. The petitioners have challenged the aforesaid orders dated 27-7-1987 of the S. D. M. and 11-11-1987 of the 3rd Additional Sessions Judge, Varanasi by means of the present petition.

3. The learned Counsel for the petitioners has urged that the first party (respondent Nos. 2 to 4) had not claimed the Bamboo Clumps situate in plot No. 780/3 in the written statement filed by them and as such, the impugned orders passed by the learned S. D. M. as well as learned Adi. Sessions Judge holding that the First party was in possession over the aforesaid property is wholly illegal. This petition was heard on 13-9-90 and the petitioners were directed to produce certified copy of the written statement of this first party. Cer tified copy of the written statement of the first party has been produced by the learned Counsel for the petitioner on the date of hearing of the petition on 23-4-91. A perusal of the written statement of the first party will show that the contention raised by the learned Counsel for the petitioner is not correct. In para-land 10 of the written statement, it is clearly stated that the first party was owner of the disputed property and the same was in their possession. It is also stated that the second party had neither any concern nor in possession over the same. The relevant portion of the written statement which is in Hindi reads as follows:

Para-1.- "yeh KE JAIDAD NIZAI PRATHAM PAKSHA KE MILKIYAT HAI AUR DWITIYA PAKSHA SE KOYE VASTA SAROKAR JAIDAD NIZAI NA KABHI RAHA HAI NA" HAI AUR NA TO UNKA KABHI KABZA RAHA HAI. . . . . . . . . "

Para-10 - "yeh KE JAIDAD NIZAI MILKIYAT BA KABZA FARIQ AWWAL HAI. . . . . "

It is, therefore, clear that the first party had specifically asserted to be owner in possession of the entire property in dispute in the written statement and had further pleaded that the second party was neither owner, nor was in possession over the same. It is true that in other paragraphs of the writte