Thadani C J-This is a reference made by the learned Ses. J. Upper Assam Districts, in the case of one Radhanath Barthakur v. Bana-rashiram Sahu in which the learned 1st Class Mag., Jorhat, passed the following order: ' In order that the 2nd party (REadhanath Barthakur) shall not take possession of the strip of land (25 x 10 cubits) towards the eastern end of dag No. 1837, that is, alongside the Bank of Assam building, to the exclusion of the enjoyment of the right of use, as an easement until he shall obtain the decree or order of a com­petent Ct. adjudging him to be entitled to exclusive possession." The learned Ses. J. has recommended that the order passed by the 1st Glass Mag. of Jorhat, dated 18-6-1949, be set aside, having regard to the following facts [2] It appears that Radhanath Barthakur secured for himself settlement of a small plot of land (dag NO. 1897) abutting on the Assam Trunk Road, Jorhat, comprising an area of 11 lessas, at an auction sale held by Govt. for a sum of Bs. L5000. This settlement was confirmed, on appeal, by this Ct. Shortly afterwards, Radha­nath Barthakur commenced building a house on the land when, it ia alleged, Banarashiram Sahu put impediments in the way of Radhanath Barthakur, whereupon the latter instituted pro­ceedings under S. 144, Or. P C. against Bana­rashiram Sahu. In due course, the learned Mag, passed an order on 27-5-1949 whereby he directed Banarasbiram Sahu not to trespass upon dag NO. 1897 & not to cause any obstruction or annoyance to the 1st party (Badhanath Bartha­kur) in constructing a house. On the following day, i. e. on 28-6-1949, Banarashiram Sahu filed an appln. before the same Mag. under s. 147, Or. P. C., upon which a notice was issued to Radhanath Barthakur to show cause against the appln. made by Banarashiram Sahu, & after taking evidence, the learned Mag. came to the conclusion that Banarashiram Sahu had esta­blished a right of way over the disputed land (vide his order dated 18-6-1949). [S] The learned Sea. J. points out that the Mag, upon receiving the appln. made by Banarashiram Sahu, & after taking evidence, the learned Mag. came to the conclusion that Banarashiram Sahu had esta­blished a right of way over the disputed land (vide his order dated 18-6-1949). [S] The learned Sea. J. points out that the Mag, upon receiving the appln. from Banarashiram Sahu, did not follow the procedure laid down; by law that far from being satisfied as to the likelihood of a breach of the peace, he should have come to the conclusion that there was no such likelihood in view of his own order passed in the proceedings under S. 144, Or. P. C. only the previous day. The learned Ses. J. further points out that the same Mag. in the proceed­ings under S. 144, Cr. P. 0. bad decided that Banarashiram Sahu had no right to the land in suit & had directed him not to trespass upon the land of Radhanath Barthakur: that in pas­sing the order on 18-6-1949 upon the appln. of Banarashiram Sahu directing Radhanath Bar­thakur not to take possession of the strip of land, the learned Mag. passed an order at variance with his previous order, dated 27-5-1949. [4] Mr. Barooah appeared for Radhanath Barthakur in support of the reference made by the learned Ses. J. He points out that under sub-s. (6) of S. 144, CE. P. 0., the order passed by the learned Mag. on 27-5-49 was to remain in force for a period not exceeding 2 months from the date of the order. He contends that so long as this order, which was to remain in force up to 27-7-49, had not been set aside before that date by a Ct. of competent jurisdiction, the learned Mag. had no jurisdiction to resolve the question of the likelihood of a disturbance of public tranquillity arising out of the alleged right of way over the land in question by mak­ing an order in favour of Banarashiram Shau & against Radhanath Barthakur, Banarashiram Sahu having been, previously directed in proceed­ings under 8. 144. Cr P. 0. not to trespass upon the land of Radhanath Barthakur: in other words, for a period of 3 months from 27-5-49, there was no question of the same Mag. or any other Mag. 144. Cr P. 0. not to trespass upon the land of Radhanath Barthakur: in other words, for a period of 3 months from 27-5-49, there was no question of the same Mag. or any other Mag. being competent to resolve the ques-tion of likelihood of the disturbance of public tranquillity in other way than the one in which it had already been resolved by the Mag. by his order dated 27-5-49. We think the contention must prevail. [B] Mr. Ghose for Banarashiram Sabu has contended that the appln. made by his client under 8.147, Cr. P. C., was founded upon a different set of facts. He stated that the appln. made under 8. 147, Cr. P. C., related to a dis­pute over a strip of land which was not the subject-matter of the dispute in the previous proceedings under s 144, Cr. P. C. But a bare reference to the order of the Mag. dated 27-5- 49, suffices to show that the land in respect of which the right is now claimed, wag the land involved in the proceedings under S. 144, Or. P. 0. Indeed in the previous proceedings under S. 144, Or. P. C., Banarashiram Sahu had claim­ed a right of way over the entire land of Radhanath Barthakur purchased by him at the auction. In his order, dated 27-5-49, passed in the 8. 144, Or. P. C. proceedings, the learned Mag. stated: "2nd party, that is to say, Banaraehiram Sahu, wants to have a passage through the land from his homestead to the A. T. Road & thereby chooses to create conditions likely to cause an imminent breach of the peace. 2nd Party, on the evidence adduced by him, goes to show that he used to pass through dag No. 1897 for a long period of time, as long as the land remained Sarkari and unoccupied by anybody.....2nd party's claim of a pathway or right of way over dag No. 1897 is not specified with any demaraotion or measurement. He cannot obviously claim the whole or any part of the dag according to his own choice. An area of 5 leesas out of 16 lessas covered by the original dag No. 1S97 has already been set apart aa Sarkari for use of the public." It is clear from this order of the learned Mag. He cannot obviously claim the whole or any part of the dag according to his own choice. An area of 5 leesas out of 16 lessas covered by the original dag No. 1S97 has already been set apart aa Sarkari for use of the public." It is clear from this order of the learned Mag. that it was not the case of Banarashiram Sahu then that he had a right of way over a particu­lar strip of land, as, now alleged by him. [6] The grounds on which we propose to set aside the order of the Mag., dated 18-6-49. is that on 28-5-49, when the appln. under S. 147, Or. P. C., was made before him by Banarashi­ram Sahu, he had no jurisdiction to go into the question as to whether or not there was a likeli­hood of a breach of the peace, having regard to the fact that that question had already been resolved by his order, dated 27-5-49. So far as Radhanath Barthakur is concerned, there being an order, dated 27-6-49, in his favour, no ques­tion of his being a party to a breach of the peace arose. If Banarashiram Sahu elected to dis­regard the order of the Mag. passed on 27-5-49 it was scarcely open to him to allege a breach of the peace & and thereby induce the Mag. to take action under S. 147, Or. P. C. The proper course for the Mag. should have been to deal with him for the breach of the order made by him on 27-6-49 if & when he attempted to disturb the peace & not to encourage him by entertain­ing proceedings under S. 147, Or. P. C. [7] We accordingly accept the reference made by the learned Ses. J. & set aside the order of the learned Mag., dated 18-6-49, in Misc. case NO. 55 of 1949. [8] Ram Labhaya J.-I agree. V.B.B. Beference accepted.