Modi, J.—This is a reference by the Sessions Judge, Pali, in a proceeding under sec. 145 Cr.P.C., and arises under the following circumstances. 2. It appears that opposite party Chaturbhuj made an application on the 22nd October, 1956, in the court of the Sub Divisional Magistrate, Bali, alleging that Shankerlal and others (who are petitioners in this Co<»rt but were opposite parties in the court of the Magistrate)were bent upon interfering with the possession of the former over certain land, which was described in the application, situate in village Undari, Tehsil Bali, and that there was a likelihood of a breach of the peace. The Magistrate passed preliminary order on the same date and called upon the parties to put in their respective claims as regards possession over the land in controversy. Shankerlal and others resisted this application mainly on the ground that Chaturbhuj had filed an earlier application in the same connection on the 6th Sept., 1956, which had been dismissed by the Magistrate on the 25th Sept., 1956 and, therefore, a second application under sec. 145 Cr.P.C. was incompetent. The Magistrate after having recorded the evidence of the parties came to the conclusion that possession of the opposite party, Chaturbhuj, over the 1and in dispute was established at the date of the preliminary order, and in that view he declared him to be in possession of the land in dispute and forbade the present petitioners from interfering with such possession until Chaturbhuj was evicted therefrom in due course of law. Before proceeding further, it may be pointed out that the application dated the 6th September, 1956, was dismissed on the 25th September, 1955, because Chaturbhuj had defaulted in appearance on that date. The ground relating to the non-maintainability of the second application has found favour with the learned Sessions Judge, and, consequently, he came to the conclusion that Chaturbhujs second application on the same facts was incompetent and he has, therefore, made the present reference with a recommendation that the order of the Magistrate was illegal and should be set aside. 3. Mr. Hastimal has appeared in this Court on behalf of the opposite party Chaturbhuj to oppose the reference. The petitioners, Shankerlal and others, have not entered appearance in this Court. 3. Mr. Hastimal has appeared in this Court on behalf of the opposite party Chaturbhuj to oppose the reference. The petitioners, Shankerlal and others, have not entered appearance in this Court. I have carefully perused the record and considered the question of law raised by the learned Sessions Judge, and have come to the conclusion that there is no force in this reference, and it must be rejected. 4. The only question for determination before me is whether, where a first application under sec. 145 Cr.P.C. has been dismissed for default, a second application is not competent though he had tried to quality his opinion by saying that "this would be the result where the second application is granted on the same facts." The learned Judge has placed his reliance on Ghulam Mohd. vs. Crown (1) which in its turn seeks to follow Tarini Charan Chowdhary vs. Amulya Ratan Roy (2). I have considered these authorities and have formed the opinion that these cases have no application whatever to the case before me. In the Lahore case () the facts were that the petitioner, having, made an application under sec. 145 Cr.P.C. before the Magistrate, a preliminary order was passed on the 8th April, 1921. On the 20th May, the parties appeared before the Magistrate and stated that the dispute had been referred to arbitration, and, therefore, they did not wish to proceed further in the matter. Consequently, the Magistrate passed an order consigning the case to the record room. On the 1st July, 1921, the petitioner then made another application under sec. 145 and this was treated by the Magistrate as a continuation of the previous application and was made the basis of the final order. When the matter vent to the High Court, it was held that proceedings under sec. 145 could not be renewed alter the dispute had been settled and an order was made that the case be struck off and that a new proceeding would not be justified only on the materials upon which the proceeding which had already been struck off was passed. It is clear from the report of this case that what the Magistrate did was to have treated the second application as a continuation of the first. In the present case the opposite pasty came to file a second application which was not a mere continuation of the first. It is clear from the report of this case that what the Magistrate did was to have treated the second application as a continuation of the first. In the present case the opposite pasty came to file a second application which was not a mere continuation of the first. A perusal of the Lahore case further shows that the learned Chief Justice in that case never went to the length of holding that a fresh application would not lie at all. All that he said was that if the second application was treated as a fresh application, then too it Mould fail in the circumstances of that case inasmuch as the petitioner was not in possession within two months of the date of preliminary order. Further, the learned Chief Justice also held that there was likelihood of a breach of the peace in that case. In these circumstances, I have no hesitation in saying that the Lahore case is entirely distinguishable on facts. 5. Reliance was placed in the Lahore case on Tarini Charan Chowdhry vs. Amulya Roy (2). Briefly, the facts in that case that proceedings were started under sec. 145 Cr.P.C. on the 17th May, 1892. The case went on for some time when the parties applied in court to say that they would not go upon the land in dispute until the matter was settled either under the provisions of the Survey Act or by arbitration. The Magistrate thereupon ordered that the proceedings be struck off. It transpired that the proposed arbitration fell through. Thereupon a new application was made by one of the parties upon which the Magistrate made an order on the 23rd September, 1892, the result of which was that the inquiry was recommenced in October, 1892, and the Magistrate relied upon a report of the Sub-Inspector concerned made in the preceding April that there was an apprehension of a breach of the peace. It was held by the Calcutta High Court that the Magistrate was not right, in October, in acting only upon a report made in the previous April when the likelihood of a breach of the peace which was referred to in that report must have parsed away, and in that view the High Court set aside the order passed by the Magistrate. What is important to observe in this case is that the learned Judges who decided the case themselves stated towards the end of their judgment that the setting aside of these proceedings may only lead to the institution of a fresh proceeding but that that was a matter for the Magistrate to determine having regard to the question whether at the moment the fresh proceeding was commenced there was or was not a likelihood of a breach of the peace. This, to my mind, clearly shows that the cases discussed above and upon which reliance seems to have been placed by the learned Session Judge in coming to the conclusion to which he did do not establish that where a first application under sec. 145 has been dismissed for default, a second application under the same section would on that ground alone be competent. 6. The whole matter, as I look at it, resolves itself to this. The simple test would always be whether the basic conditions of sec. 115 Cr.P.C. are fulfilled at the time a fresh application under sec. 145 is moved before the Magistrate concerned. These conditions are mainly two. The first is whether there is a dispute about land or water or boundaries thereof, and secondly, whether such dispute is likely to cause a breach of the peace. Where these two conditions are satisfied at the time a fresh application tinder s. 145 happens to be made, then I do not see how such an application can be resisted merely on the ground that an earlier application based on the same facts had been dismissed by the Magistrate owing to default in appearance of the petitioner before him. It may also be pointed out in this connection that sec. 403 Cr.P.C. does not enact a bar in the way of a second application being filed under sec. 145 as proceedings under that section do not constitute a trial within the meaning of the former section. 7. I therefore hold that on the view, which I have felt persuaded to accept as discussed above, the second application moved by the opposite party Chaturbhuj was competent, and the Magistrate had jurisdiction to take cognizance of it and dispose of it in accordance with law as 1aid down in sec. 145. 8. I may also add in this connection that sec. 145. 8. I may also add in this connection that sec. 145 is enacted to deal with and settle certain disputes relating to land or water in the interest of public peace, and also lays down the conditions in which such a proceeding, if once commenced, can be dropped. Such a contingency would arise where the Magistrate comes to the conclusion that there is no apprehension of a breach of the peace. See. sub sec. (5) of sec. 145 Cr.P.C. The section is, to my mind, a self contained one, and the procedure envisaged in the section does not contemplate the dismissal of an application under that section for default. 9. Having regard to this aspect of the matter and also having regard to the paramount consideration behind sec. 145 namely that it is designed to prevent a breach of the public peace and temporarily settle disputes as to possession and to maintain the status quo until the rights of the parties are decided by a competent court, I am inclined to entertain the view that there is nothing in the Code of Criminal Procedure which precludes an applicant whose application under sec. 145 has been dismissed, simply owing to his default in appearance from filing a fresh application under sec. 145, founded on the same facts provided of course his second application has been filed within two months of alleged deprivation of possession or threat thereto relied on in the first application and otherwise fulfils the basic conditions laid down in the section. 1 hold accordingly. 10. So far as the merits of the order passed by the Magistrate go, even the learned Sessions Judge appears to have formed the opinion that the order of the Magistrate was correct and does not call for any interference. 11. On the view which I have formed as to the competence of the second application filed by Chaturbhuj, this reference has no force and I hereby reject it.