JUDGMENT

Rachhpal Singh, J. - This is a reference by the learned Sessions Judge of Farrukhabad recommending that an order passed by a Magistrate of First Class in that District directing that one Bhola Singh under the provisions of Section 145, Criminal Procedure Code, be put in possession of the plot in question, be set aside.

2. Bhola Singh made an application u/s 145 Code of Criminal Procedure on the 15th of March, 1933, in which he alleged that Munshi Singh, Gurdatta Singh, and Mahartan Singh had forcibly dispossessed him of a plot of land by erecting a building over it and by cutting some trees, and that, therefore, there was an apprehension of the breach of the peace. It may be stated here that in his application Bhola Singh alleged that he had been dispossessed seven or eight days before the date of his application. The Sub-Divisional Magistrate asked the police to make a report and it was not till the 11th of May, 1933, that he issued a notice to the opposite-party. The learned Magistrate who tried the case came to the conclusion that Bhola Singh's possession continued undisturbed till lately when he was forcibly ousted from the plot. He did not, however, specify the exact date on which, according to him, Bhola Singh had been dispossessed. He further found that it was made out that there was an apprehension of the breach of the peace, and, therefore, he made an order that Bhola Singh should be put in possession and the opposite-party be prohibited from disturbing his possession.

3. Against the order passed by the learned Magistrate revision was preferred to the learned Sessions Judge. Two points were urged before him. The first related to the alleged illegality of the notice issued by the learned Magistrate. But in view of a decision of this Court reported in Kapoor v. Suraj Prasad (1933) I.A.W.R. 249, this point was abandoned. The second point urged was that as Bhola Singh according to the evidence in the case had been dispossessed more than two months next before the date of the notice (11th of May) the order passed by the Magistrate was incompetent having regard to the provisions of the poviso 2 Sub-Clause 4 of the Section 145 Criminal Procedure Code. * This is the only point which I have to consider in this reference.

4. Section 145 Clause 1 enacts that whenever a Magistrate is satisfied from a police report that a dispute likely to cause a breach of the peace existed then lie shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader and to put in written statements of their respective claims as respects the fact of actual possession of subject of dispute. Clause 4 of this section runs 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 and which of the parties was at the date of the order before mentioned in such possession of the said subject.

5. One of the provisos to this section runs thus:

Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.

6. The contention of the applicants (Munshi Singh, Gurdatta Singh, and Meharban Singh) which has been accepted by the learned Sessions Judge is that in view of the proviso referred to above of Sub-Clause 4 of Section 145 Criminal Procedure Code, a Magistrate cannot make an order u/s 145 if it is found that the person making an application under that section had been dispossessed more than two months before the date on which the Mag