CHOWDHRY, J. - (1.) THIS is a reference by the learned Sessions Judge of Bilaspur under Section 438, Criminal Procedure Code, recommending that an order under Section 145 of the Code passed by a first class Magistrate of Bilaspur declaring one Atma Ram to be entitled to possession of a 'talai', or pond, comprising Khasra No. 206 in village Berthin tehsil Ghumarwin, until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction, be set aside.
(2.) THE pond is recorded as in the co -owner ship of a large number of persons, including the said Atma Ram and one Balak Ram. The dispute arose between these two persons. The former pleads that under a partition the plot has been allotted to him and he is entitled to bring it under cultivation. He professes to have been cultivating the plot for four years. Balak Ram challenges Atma Ram's right to do so and is trying to maintain the plot as a pond. His contention is that none of the co -owners has been in actual possession of the pond, and that the public in general take water therefrom.
(3.) THE proceedings started on a police report by S. I. Imam Din dated 2.6.1952, that a dispute likely to cause a breach of the peace existed concerning the said talai between Atma Ram and Balak Ram. The Magistrate made a preliminary order requiring the parties to put in written statements of their respective claims, which were duly filed, held an inquiry and passed the afore said order. I have heard the learned Government Advocate and the learned counsel for Balak Ram in support of the reference, and the learned counsel for Atma Ram opposing the same, and am of the opinion that the reference should be accepted and the order of the Magistrate set aside In the preliminary order made by him the Magistrate did not state that he was satisfied from the police report or otherwise that a dispute likely to cause a breach of the peace existed concerning the talai in question, to say nothing of his having stated the grounds of his being so satisfied. Although he ordered that a copy of the order be published by affixation to some conspicuous place at or near the subject of dispute, it does not appear from the record that this order was carried out. So far as these defects are concerned, I agree with the learned counsel for Atma Ram that the same should be deemed to be cured by the provisions of Section 537 of the Code since they do not appear to have in fact occasioned a failure of justice. The order in question was passed on foot of the police report, and it may be taken that the Magistrate felt satisfied that a dispute of the nature contemplated by Section 145 did exist. As regards want of publication, it does not appear to have prejudiced the present parties in any case since they knew that the dispute re lated to the 'talai.' There are however other two defects which, in my opinion, are incurable.;