JUDGMENT Seth, J. - This is an application in revision by one Ram Naresh against whom proceedings u/s 145, Code of Criminal Procedure were started by one Gul Mohammad in the Court of Mr. B.V. David, Magistrate, first class, Banares. A number of other persons subsequently joined as applicants with Gul Mohammad. 2. The learned Magistrate made the order contemplated by Section 145(1), Code of Criminal Procedure on the 24th of September, 1946. After considering the evidence led in the case he decided it on the 11th of December, 1946, and ordered that the disputed property be attached u/s 146(1), Code of Criminal Procedure until a competent Court had determined the right of the party aggrieved. He had recorded his finding in the following words:-- "Under these circumstances, I am unable to satisfy myself as to which party is in possession of the land in suit and am satisfied that there is an apprehension of a breach of peace." 3. Before recording this finding, the learned Magistrate has recorded another finding, in the following words:-- "I therefore, come to the conclusion that the possession of Ram Naresh and Others is forceful possession within two months from the original order dated 24-9-1946." 4. Ram Naresh applied to the Court of the Sessions Judge of Banaras to move the High Court to set aside this order. This application was heard by the Additional Sessions Judge who rejected it on the 9th of July, 1947. Ram Naresh has, therefore, come up in revision against the order of the Magistrate to this Court. 5. I am of the opinion that the order of the learned Magistrate cannot be maintained. 6. Section 145(4) Code of Criminal Procedure, makes it obligatory that, if possible, it should be decided as to which party was in possession of the subject matter of dispute on the date of the order contemplated u/s 145(1). Provisions of Section 146(i) apply only to such cases where a Magistrate is not able to come to a definite conclusion as to which party was in possession on such a date. In this case there is a definite finding by the Magistrate that Ram Naresh had come into possession before the order u/s 145(1) Code of Criminal Procedure, was passed, though it is subjected to a rider, that he had taken possession forcibly. In this case there is a definite finding by the Magistrate that Ram Naresh had come into possession before the order u/s 145(1) Code of Criminal Procedure, was passed, though it is subjected to a rider, that he had taken possession forcibly. There in no finding by the Magistrate that Ram Naresh had taken forcible possession from any one of the opposite parties to this revision, who were the applicant before the Magistrate. The last finding recorded by the learned Magistrate implies that he was unable to arrive at any such finding. The learned Magistrate thought that Ram Naresh could not be deemed to have been in possession on the date of the order in view of the proviso to Section 145(4) Code of Criminal Procedure. The proviso reads as follows:-- "Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed he may treat the party to dispossessed as if he had been in possession at such date: 7. The proviso, therefore becomes applicable only if a Magistrate can come to a definite finding that any particular party has bean dispossessed within a period of two months, next preceding the order u/s 145(1). The effect of the proviso is that it enables a party to be treated in possession, on the date of the order though actually he may be found so have bean dispossessed before that date. It is only, if such a party can be treated or deemed to be in possession on the data of the order, that the parson actually in possession can be said not to have been in possession on the date of the order u/s 145(1). In this case according to the finding of the learned Magistrate, there being no persons or party who could be entitled to the benefit of the proviso, i cannot be said that Ram Naresh was not in possession on the date of the order. On the findings recorded by him, the learned Magistrate should have held that Ram Naresh was in possession on the date of the order and should have directed possession to be delivered to him. 8. I set aside the order of the learned Magistrate dated the 11th of December, 1946, and direct that the possession of the disputed property be delivered to Ram Naresh.