Raj Kishore Prasad, J.

(1) This is a reference under Section 438 of the Code of Criminal Procedure (hereinafter referred to as "the Code") made by the learned Additional Sessions Judge of Singhbhum at Chaibassa, recommending that the order dated the 14th April, 1961, of the learned Magistrate of Saraikella dropping the proceeding under Section 145 of the Code should be set aside.

(2) Put briefly, the facts are these. The subject matter of dispute was Khata 108, consisting of 26 plots, including Bandh and trees in this Khata in village Bakarpur. On the 27th May, 1960 the police submitted a report for action under Section 144 or Section 145 of the Code against both the parties. On the 30th May, 1960, a proceeding under Section 144 was initiated against both the parties. On the 27th July, 1960, the said proceeding under Section 144, which was a fore-runner of the proceeding under Section 145, was converted into one under Sub-section (1) of Section 145 of the Code. In course of the enquiry, both the parties filed affidavits of their witnesses and also filed documents in support of their respective cases.

(3) It appears that on the 23rd July, 1933, the first party got delivery of possession through Court over all the plots appertaining to Khata 108. It further appears that in 1945 the second party filed a title suit against the first party for declaration of their title to and recovery of possession over 12 plots, out of the 26 plots in dispute, after relinquishing their claim to the rest. That suit was dismissed on the 31st January, 1947. During the recent survey settlement proceedings the second party are recorded only in respect of plot 63 (which is wrongly mentioned as plot 83), whereas, the first party are recorded in respect of the remaining 25 plots. The first party, however, have applied for correction of the entry regarding plot 63 under Section 83 of the Chotanagpur Tenancy Act.

(4) Even on the foregoing facts, the learned Magistrate by his order under reference, dropped the proceeding under Section 145(1) of the Code, on five grounds; (1) that the evidence in the shape of affidavits is equally balanced; (2) that considerable period had elapsed between the date of delivery of possession in 1933, in favour of the first party, and the present proceeding in 1960, and, therefore, the additional evidence in the shape of the delivery of possession in favour of the first party could not be conclusive on the question of possession; (3) that none of the witnesses in their affidavits filed on behalf of the first party has stated anything about the existence of apprehension of breach of the peace, and, therefore, it means that no apprehension of breach of the peace exists; (4) that the fact that plot 63 (wrongly mentioned as 83) has been recorded in the name of second party and the remaining plots recorded in the name of the first party shows that both the parties have possession over the disputed lands; and, (5) that where both parties have possession over the subject matter of dispute no definite order can be passed, and, if any order is passed, it cannot be enforced. For these main reasons, therefore, he dropped the proceeding and directed the parties to seek their remedy in the Civil Court.

(5) To answer the reference, we have to read the relevant provision of the Code on this question, which is Sub-section (5) of Section 145. Section 145 (5) is in these terms;

"145(5). Nothing in this section shall preclude any party so required to attend, or any other person interested from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final".

(6) The scheme of section 145 of the Code is that in the first place a Magistrate has to be satisfied that there is a dispute likely to cause a breach of the peace, and, if he is so satisfied, he has to make an order under Sub-section (1) of Section 145. The apprehension of a breach of the peace is the first condition necessary to give the Magistrate jurisdiction under this section. . But parties or any other person interested may under Sub-section (5) of Section 145 show that no such dispute as aforesaid exists or has existed and can object that there is no danger of a breach of the peace, and, then, in that case, the original order under Sub-section (1) of Section 145 can be cancelled by the Magistrate under Sub-section (5) of Section 145. A Magistrate, therefore, acts illegally if he drops a proceeding under Section 145(1) on the ground that the applicant has not led evidence to prove that a dispute involving an apprehension of the breach of the peace existed or still continues. The real question before the Magistrate, after having started the said proceeding, is whether he is satisfied that the dispute did not, or has ceased to involve an apprehension of a breach of the peace. The Magistrates power to drop the proceeding, however, is not limited to the circumstances mentioned in Sub-section (5). He is entitled to drop the proceeding even on his own initiative whenever he is satisfied that there is no further likelihood of breach of the peace, if there are materials to show that there is no longer any apprehension of a breach of the peace. Proceedings under Section 145(1), however, can be dropped under Sub-section (5) of Section 145 also if there has been a subsequent settlement between the parties or if the petitioner has agreed to give up his right to possession and his claim to get back the possession. Merely because there has been no further violence, it cannot be said that there cannot be a breach of the peace, and, therefore, the proceeding should be dropped. Continuance of a breach of the peace is not necessary to pass a final order under Subsection (6) of Section 145 of the Code.

(7) The above is the scope of Sub-section (5) of Section 145 of the Code. In the light of the above principles, let us see if the order of the Magistrate Ss justified on any of the five grounds set out before.

(8) If the evidence in the shape of the affidavits adduced by the parties is equally balanced then it is manifest that the Magistrate is unable to decide as to which of the party was in possession of the subject of dispute on the date of the preliminary order made under Section 145(1), and, therefore, in such a case, the proper order to pass was under Section 146(1) of the Code, and, as such, he had no jurisdiction on this ground to drop the proceeding under Section 145(5) of the Code.

(9) If one party is recorded to be in possession of one plot and the other party is recorded in possession over the rest, then it is plain that it is not a case of joint possession. It is true that if the contesting parties are in joint possession then it is clear that no order can be made under Section 145. Section 145 contemplates a dispute between two parties each of whom asserts a right to hold exclusive possession of the property as against the other. Where, however, one party claims exclusive possession while another party claims to be in joint possession along with them, it is no less a question of disputed actual possession than if each party claimed exclusive possession of the entire area. Here, however, even that was not the position. On the recent survey settlement papers, one party was recorded in exclusive possession over one plot and the other party was recorded in exclusive possession over the remaining. The question of joint possession therefore, did not arise, and, therefore that could not be a ground for dropping the proceeding.

(10) The learned Judge has rightly pointed out that the learned Magistrate has not taken into consideration the recent Civil Court judgment, inter partes, of 1947 as also the rent receipts filed on behalf of the petitioner. The learned Judge is also right in observing that the learned Magistrate should have directed himself to the consideration of the question if the first party, who were given delivery of possession in 1933, continued in possession till 1960 or were dispossessed after 1933, and, if so when.

(11) The fact that some of the witnesses of the first party have stated in their affidavits that there was no apprehension of a breach of the peace is also no ground for dropping the proceeding. The first party is not at all required to lead any evidence to prove that such a dispute existed or continues. If it did not exist or has ceased to exist, the onus is on the opposite party to lead evidence on that question and it is only when be satisfies the Magistrate about it that the latter would be bound to drop the proceeding.

(12) The above view taken in Ganga Singh v. Raj Bahadur Singh, AIR 1958 All 803 [LQ/AllHC/1958/153] has been relied upon by the learned Judge also.

(13) The learned Additional Sessions Judge has, therefore, rightly pointed out, in his well-considered and well reasoned order, after discussing both facts and law, that the learned Magistrate has misdirected himself, in that, on none of the grounds mentioned by him, he had jurisdiction to drop the proceeding, and, therefore, his order was illegal.

(14) For the reasons given above, the reference is accepted and the order of the learned Magistrate dated the 14th April, 1961, is set aside and the case is remitted to the Subdivisional Magistrate of Saraikella to decide this case himself or to transfer it to any other Magistrate (other than the Magistrate who has tried it) having first class powers, who may be competent to decide this case, and he should decide it afresh on the evidence al ready on record and dispose it of in accordance with law.