Sharma, J. - (1.) THIS is a reference by the learned District Magistrate, Sikar in a case under sec. 145 of the Criminal Procedure Code.
(2.) THE facts are as follows: - A report was made by Mangla and others (hereinafter to be referred to as the second party) at the Police Station, Thoi, on the 23rd of June, 1954. It was alleged therein that the second party had been in actual possession of the land under the well called Liladei in the village of Jharli, District Sikar, and that the first party interfered with that possession and there was danger of breach of the peace on account of this interference by the first party. On this the police of Thoi, submitted a report before the Sub Divisional Magistrate, Nim-ka-Thana that one third of the land under the well named Liladei was being cultivated by Prahlad son of Umrao Singh and the remaining two third was being cultivated by Gopal Singh, Jasu Singh and Mangla,and Gopal Singh and Jasu Singh wanted to dispossess Mangla from which breach of the peace was apprehended- It was prayed that an action under sec. 107 Cr. P. C. be taken against Gopal Singh's party i. e. , the first party. This report by the police is dated the 27th June, 1954. On the 28th June, 1954, the the learned Sub-Divisional Magistrate made an order under sec. 112 Cr. P. C. and called upon the first party to furnish security for keeping the peace and a notice was issued to the first party to show cause. THE first party showing cause filed their reply dated the of 10th July, 1954. THEy said in this reply that the second party had absolutely nothing to do with the land under the well Liladei and that the said and was being cultivated by Gopal Singh Prahald Singh and Jai Singh. THE second party also claimed exclusive possession of the land under the well Liladei. THE Magistrate was of opinion that the proceedings under sec. 145 Cr. P. C. were called for under the circumstances of that case and drew up a preliminary order on the 18th of August, 1954, saying that both the parties claimed their exclusive possession over the land under the said well and he was satisfied that there was apprehension of breach of the peace. THE proceedings under sec. 107 were, therefore, converted into those under sec. 145 and notices were issued to both the parties in accordance with the provisions of sec. 145 and both the parties were called upon to file their written statements if any, and the evidence regarding the actual possession of the land under the said well 28th of August, 1954, was fixed for the filing of written statements and evidence, if any. It appears that although both the parties appeared in response to the notices under sec. 145 which were served on them in court on the 18th of August, 1954, the date of the preliminary order it self, yet the first party did not choose to file any fresh written statement and contended with the previous reply dated the 10th of July, 1954. The second party filed their written statement dated the 14th of October, 1954, any they said therein that they had been cultivating the land under the well Liladei and that the first party were interfering with their cultivation. It was prayed that the second party should have the land under the said well. The first party in their reply dated the 10th of July, 1954. had stated that they were in possession of the land under the well in dispute and had been cultivating it. Both the parties produced evidence. The learned Sub-Divisional Magistrate preferred the evidence regarding possesion of the second party to that of evidence produced by the first party and made an order that it be declared that the second party were in possession of the land in dispute and restrained the first party from interfering with the possession of the second party till a decision by a competent court on the 28th of February, 1956. The first party went in revision to the court of the District Magistrate, Sikar, against the above order of the learned Sub-Divisional Magistrate. The learned District Magistrate is of opinion that the order of the Sub-Divisional Magistrate is wrong and that it should be set aside. A reference has, therefore, been made to this Court. The learned Sub Divisional Magistrate was called upon to submit an explanation under rule 80 of the Rules of this Court It appears that Shri Bala Sahar was the Magistrate who had made the order under revision but somehow the papers reached Shri Gajraj Singh Ojha, the then Sub-Divisional Magistrate of Sironj and the said Magistrate said that he had nothing to do with the case and that the explanation be called for from Shri Bala Sahai if necessary. Shri Bala Sahai does not appear to have been asked to submit an explanation and consequently on explanation of his is on the file. I have heard Shri C. L. Agrawal on behalf of the first party and Shri O. C. Chatterjee for the second party. Mr. Agrawal in the first instance argued that the learned Magistrate was wrong in accepting the evidence produced by the second party and improperty disbelieving the evidence produced b79 the first party. Further he argued that even on the police report dated the 27th of June, 1954, it was clear that the first party were in exclusive possession of one third of the property in dispute and both the parties were jointly in possession of the remaining two third. Even then the learned Magistrate made an order that the possession of the second party over the entire land be declared. In his reply after the arguments of the learned counsel for the second party, Mr. Agrawal raised a fresh point that there was no accurate description of the subject matter of dispute either in the preliminary order or in the final order and, therefore, the final order was bad on that account. An opportunity was given to Mr. Chaterjee to reply to this fresh argument of Mr. Agrawal and Mr. Chaterjee argued that first of all there was satisfactory description of the property in the preliminary order as well as in the final order but even if there was some inaccuracy, the final order could not be upset unless the first party is prejudiced on account of the inaccurate description. The decisions of Calcutta High Court and Oudh Chief Commissioner's Court in the cases of Khudiram Mandal vs. Jitendra Nath (1) and Prabhu Dayal vs. Emperor (2), were relied upon. A ruling of this Court in the case of Durjan Singh vs. The State (3) was also relied upon to show that any irregularity in the preliminary order or omission to record a preliminary order was a mere irregularity curable under sec. 537 of the Criminal Procedure Code if no prejudice was caused, on account thereof. It was further argued by Mr. Chaterjee that the finding regarding possession was a finding of fact and was based on legal evidence and should not, therefore, be disturbed in revision. As regards the argument of Mr. Agrawal that in the report of the police dated the 27th June, 1954, one third of the property was stated to be in the exclusive possession of the first party and only two third was in the joint possession of both the parties, it was argued by Mr. Chaterjee that the preliminary order dated the 18th of August, 1954, related to the land under Liladei well and did not relate to only a fraction of it. The written statements of both the parties also related to the entire land and the same is the case with the evidence produced by both the parties. Under these circumstances, there could be no prejudice to the first party and the order of the learned Sub-Divisional Magistrate under revision should not be interfered with. I have considered the arguments of both the leaned counsel. So far as the question regarding possession is concerned, both the parties produced their evidence with respect to their possession on the entire land under Liladei well. The evidence of the first party was that they were in exclusive possession of the entire 18 kham bighas which is the area of the entire land under the well in dispute. The evidence of the second party likewise was to the effect that the second party had been in possession of the entire 18 kham bighas and that the first party were not in possession of it during the period relevant under sec. 145 of the Criminal Procedure Code. It was for the Magistrate to accept the evidence of one party or the other and the learned Magistrate on a consideration of the evidence produced by both the parties has come to the conclusion that the second party were in exclusive possession of the entire land under Liladei well. This is a finding of fact based on legal evidence and it is not for the revisional court to set aside this finding simply on the ground that the evidence of the one or the other was stronger. On this ground, therefore, no interference can be made with the order of the learned Magistrate. As regards the question that the police report related to the dispute regarding only two third share of the land under Liladei well. It is true that the police report was to that effect. The police report however, cannot be accepted as evidence in this case. The report of the second party clearly related to the entire land under Liladei well. If the police were of opinion that the dispute related only to two third share of the land under the said well, it cannot be said that the parties were bound by the statements of the police in the report. It is clear that on the 18th of August, 1954, a preliminary order was made and in that order it was not stated that the dispute was with respect only to a fraction of the land under Liladei well. The order appears to relate to the entire land under the said well. The written statement of the first party was also not with respect only to a portion of the land. A reading thereof will show that it related to the entire land. No doubt the written statement was filed in proceeding under sec. 107 Cr. P. C. and the first party did not choose to file a fresh statement in response to the preliminary order dated the 18th of August, 1954, but that simply shows that the first party had no case different from the one disclosed in the written statement dated the 19th of July, 1954. The written statement of the second party clearly relates to the entire land under Liladei well. As regards the evidence, the evidence of both the parties was to the effect that the first party or the second party was in the exclusive possession of the entire land under Liladei well. From the proceedings of this case it is quite clear that both the parties clearly understood that the dispute was with respect to the entire land served by Liladei well and they wanted to prove their actual possession with respect to the same. I am therefore, not impressed with the arguments of Mr. Agrawal that the order of the learned Magistrate should be set aside simply on the ground that the police report related to two third of the land under the well in dispute. The final argument of Mr. Agrawal which was raised simply in reply was that accurate description of the property in dispute has been given neither in the preliminary nor in the final order and on that ground the order of the learned Magistrate should be vacated. It is clear from the proceedings in the case that both the parties understood quite well as to what was the property which was in dispute. Neither of the two parties objected before the learned Magistrate that the preliminary order did not disclose as to what was the subject matter of the dispute or that it could not give an accurate idea of the property in dispute. In the grounds of revision filed before the learned Magistrate too, no such objection was taken. It appears from the judgment of the learned district Magistrate that this point was not raised even at the time of arguments before him. It is, therefore, too late in the case to say that the parties could not know from the preliminary order as to what was the property in dispute or as to what was its extent. It quite agree with the judgment of Kendall, A. J. G. that a notice under sec. 145 without the grounds or without specifying the land in dispute though irregular, does not vitiate the proceedings where the parties perfectly know the property in dispute. To the same effect is the judgment in Prabhu Dayal's case (2) as is of a Division Bench of Calcutta High Court in Khudiram Mandal's case (1 ). In that case too there was some misunderstanding of the property in dispute in the order of the Magistrate and it was held that as the parties knew exactly what property was in dispute and dealt with the same in their pleadings and adduced a mass of evidence, the order of the Magistrate could not be set aside in revision on the ground that the property was misdescribed unless the misdescription has caused some prejudice. The true test is whether a certain omission or misdescription in the preliminary order has caused prejudice to one party or the order. Unless prejudice is shown merely on account of such an irregularity, the order cannot be vacated. In Durjan Singh vs. State (3), a Division Bench case of this Court, it was held that mere omission on the part of the Magistrate to pass a preliminary order under sec. 145 (1) Cr. P. C. or his failure to record the grounds for his being satisfied as to the event of the dispute within the meaning of that section and as to the likelihood of the breach of the peace are irregularities of procedure and must be judged by the test of prejudice under sec. 537 Cr. P. C. The omission to pass a preliminary order under sec. 145 Cr. P. C. is my mind a graver irregularity than an irregularity like some misdescription or inaccurate description of the property in dispute, and even if in a case where no preliminary order is said to have been drawn up, the proceedings cannot be vitiated unless there has been any prejudice. In a case like the present, where there is very slight misdescription, proceedings cannot be set aside unless prejudice were shown and in this case no prejudice has been shown by the learned counsel for the first party. I reject the reference and maintain the order of the learned Magistrate dated the 28th of February, 1956. .;