K.C.Das Gupta, J. - (1.) A point of some nicety was raised by Mr. Dutta in this Rule which is directed against an order passed in a proceeding under Section 145, Criminal P. C. What happened in this case was that on the 8th of June, 1954, the learned Magistrate passed an order under Section 145 (1), Criminal P. C., in these words: "As there seems to be real dispute over the properly in question between the contending parties and there is possibility of a breach of the peace, I draw up proceedings under Section 145, Criminal P.C., and call upon the parties to file written statements with regard to their respective possessions by 29-6-54." The contending parties referred to in this order were clearly on the one hand Radhasyam Chatterjee, the first party, and on the other Katyani Dasi, Balarain Chandra, Kanail Chandra, Gobinda Prasad Dutt, Doakari De and Kali Pada De. On the 29th July, 1954, the first party filed written statement. On an earlier date, 29th June, 1954, the 2nd party had filed an application in court praying for the addition of one Bangsidhar Chattaraj as a party. On 4-8-1954 an order was passed on this petition in these words: "The prayer of the 2nd party that one Bangshidhar Chattaraj should be a party in this proceeding is duly considered. **** Prayer is allowed. Bangshidhar Chattaraj be made a pro forma 2nd party and the proceedings already drawn up should be amended accordingly and fresh notices be served on the parties including that Bangshidhar asking them to file w.s. if any."
(2.) It appears that thereafter no written statement was filed by either of the parties and in fact Bangshidhar did neither file written statement nor appear before the Court through a lawyer nor examined himself or adduced evidence in these proceedings. After consideration of the evidence adduced by both parties, the learned Magistrate came to the conclusion that Bhabanl and on his death his widow Katyani and his sons had been in possession of the house till wrongfully dispossessed on the 22nd Baisakh (5th May, 1954) and this date being within two months next before the date of proceedings i.e., 8th June, 1954, on which the first order directing proceedings to be drawn up was passed, he held that under the 2nd proviso to Section 145 (4), Criminal P. C., the dispossessed party should be treated as if they had been in possession of the disputed house at such date. He passed order accordingly that the opposite parties Nos. 1 to 3, the widow and the minor sons of Bhabani be declared to be in possession of the disputed land and also of the pucca building standing on the land and be restored to possession of the house.
(3.) It is contended by Mr. Dutta that as there were in fact fresh proceedings actually drawn up on the basis of the order passed by the Magistrate on the 4th August, 1954, the date of "such order" for the purpose of application of the proviso to Section 145 (4), Criminal P.C., should be this date viz., the 4th August, 1954, and consequently the fact that the opposite parties 1 to 3 had been dispossessed on the 5th May, 1954, did not entitle the Magistrate to declare them to be in possession for the purpose of these proceedings.;