Beg, J.

[1] This is a reference by the learned Sessions Judge, Rae Bareli recommending that an order passed by Sri V. P. Sharma, S.D.M., Rae Bareli under Section 145 of the Code of Criminal Procedure should be set aside.

It would appear that one Maqsood Khan made an application on 20-2-1952 under Section 145 of the Code of Criminal Procedure on the allegations that he was in possession of plots Nos. 6091, 1430, 1631, 1761, 1438, 650, 1795, 332, 436 and 565 situate in tahsil Mahrajgang district Rae Bareli, that he held a patta of these plots, that he had deposited the Bhumidhari dues in respect of the said plots and that the opposite parties were turbulent persons who had forcibly cut down the 'sarson' crop grown by the applicant. The opposite parties in this application were Mohamad Raza Khan and 9 others.

The applicant Maqsood Khan is the son of Ishaq Khan and the grandson of one Dildar Khan. Mohammad Raza Khan one of the opposite parties is a brother of Ishaq Khan who is another son of Dildar Khan.

After the usual preliminary order was passed under Section 145, Sub-clause (1) of the Code of Criminal Procedure, the Magistrate entered on the enquiry as to the possession of the property. He called for the written statements of the parties, recorded the evidence produced by both the parties and on 28-8-1953 he passed the final order in the case.

This order runs as follows:

"It appearing to me, from the report of S. O. Mahrajgang dated 24-5-1952 that a dispute likely to induce a breach of peace, existed between Maqsood Khan resident of village Rastamau on one side and Mohd. Raza Khan and nine others all residents of village Rastamau on the other concerning certain plots of land detailed in the application situate within the local limits of my jurisdiction, all the said parties were called upon to give in a written statement of their respective claims as to the fact of actual possession of the said land, and being satisfied by due enquiry had thereupon, without reference to the merits of the claim of either of the said parties to the legal right of possession, that the claim of actual possession by Mohd. Raza Khan opposite party is true;

I do decide and declare that he is in possession of the said plots of land and entitled to retain such possession until ousted by due course of law, and do strictly forbid any disturbance of his possession in the meantime.

Given under my hand and seal of the Court this 28th day of August, 1953."

The above is a reproduction of the entire final order passed by the Magistrate in the said case. Dissatisfied with this order Maqsood Khan the applicant went up in revision before the learned Sessions Judge, Rae Bareli, who has referred the case to this Court with the above mentioned recommendation.

[2] Having heard the learned counsel for the parties, I am of opinion that this reference must be accepted.

A comparison of the above order with the Form No. 22 given in Schedule 5 of the Code of Criminal Procedure shows that in this case the Magistrate has done nothing except copying out the stereotyped form prescribed in Schedule 5 for passing a declaratory order under Section 145 of the Code of Criminal Procedure.

Section 145, sub-cl. 4 of the Code of Criminal Procedure lays down the procedure to be follow ed by the Magistrate, after passing the preliminary order. Section 145, sub-cl. 4 provides as follows:

"The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject."

(The two provisos appended to the Sub-section are not relevant for the purposes of the present discussion a