JUDGMENT

Wazir Hasan, A J C - This is a reference by the First Additional Sessions Judge of Lucknow, exercising jurisdiction at Bara Banki, for an order by this Court under Section 438 of the Code of Criminal Procedure. In proceedings under Section 145, Criminal Procedure Code, the servants of Mt. Ahmad-un-nisa and Zamin Ali were declared by a first class Magistrate of Bara Banki, under his order dated the 18th March 1925, to be in occupation of a house situate in village Mailaraiganj. It was also declared that they were forcibly evicted therefrom on the 18th November 1924 and the consequential order was that they be restored to the possession of the house. The order further directed that Mt. Muqin-un-nisa, Abdul Hasan and Muhamad Bakhsh do abstain from interfering with the possession of the other party over the house till that party were evicted in due course of law. The aggrieved party carried the matter in revision to the Court of the First Additional Sessions Judge of Lucknow, who, by his reference under consideration, recommends to this Court that the order of the Magistrate be set aside.

2. Two grounds are taken in support of the recommendation. The first is that the learned Magistrate does not hold that a breach of the peace was imminent and that the evidence adduced by the party in whose favour the trial Court passed the order does not go to indicate that a dispute likely to cause a breach of the peace existed with respect to the house in question. The second ground is that no preliminary order, as required by the provisions of Section 145 of the Code of Criminal Procedure, was drawn up as against Muhammad Bakhsh nor was any order served on him.

3. As regards the first ground: it is enough to say that the law does not require the Magistrate to record an express finding in his judgment that a breach of the peace was imminent. So far as the final decision is concerned it is required by law to clearly indicate whether any and which of the parties was at the date of the order before mentioned in possession of the subject of the dispute see Sub-section 4, Section 145 of the Code of Criminal Procedure. As to a finding in respect of the existence of a dispute likely to cause a breach of the peace that is a matter to be considered in relation to the preliminary order and in the present case the preliminary order distinctly says that the Magistrate was satisfied on the materials before him that a dispute likely to cause a breach of the peace existed as regards the house in question-see sub Section (1) of Section 145 of the Code of Criminal Procedure. As to the evidence the learned Magistrate found it in the admissions of the parties themselves and in my judgment admission of a dispute by both the parties concerned is certainly evidence of the existence of that dispute. This ground, therefore, fails.

4. The second ground deals with the case of Muhammad Bakhsh. Muhammad Bakhsh joined to proceedings of his own accord by making an application to the trial Court. He supported the case of Mt. Muqim-un-nisa and finally he was included by the learned Magistrate in the group of the party against whom the order was passed. This could not be done. No preliminary order as required by Section 145, Sub-section (1), of the Code of Criminal Procedure was served on Muhammad Bakhsh nor was he given an opportunity to prove his possession over the subject of the dispute. In the circumstances he could not be subjected to the final order passed by the learned Magistrate in the proceedings under Section 145 of the Code.

5. I accept the reference of the learned Judge in so far as Muhammad Bakhsh is concerned. His name will be eliminated from the final order of the learned Magistrate and all proceedings taken as against him shall be deemed to have been set aside. The rest of the order is maintained. Let the papers be returned.