JUDGMENT : Narasimham, C.J. - This is a petition in revision against a final order u/s 145 Code of Criminal Procedure passed by a First Class Magistrate of Kendrapara, declaring the first party (opposite party No. 1) to be entitled to possession of a small plot of land in Kendrapara town and forbidding all disturbance of such possession until eviction in due course of law. The disputed property consists of 7 cents of land in plot No. 159 appertaining to Khata No. 88 of Mouza Dilatpur, P. S. Kendrapara. It is admitted that the shops, a latrine and a well are inside the plot, and the remaining portion consists of Bari land. 2. Though in the last Settlement the plot was recorded in the name of some other persons, in the present dispute between the parties it is admitted that the disputed plot originally belonged to opposite party No. 1 Choudhury Bala bhadra Prasad Das who is a practising Advocate residing in Cuttack town. It is also admitted that on the 9th October 1956 he executed a sale deed transferring the property in the name of Petitioner No. 1 who was then admittedly serving under him as the Driver of his bus plying between Jagatpur and Kendrapara and was also looking after his properties at both these places. According to opposite party No. 1 the sale deed Which a benami document and the title to the property remained with him all along. It is admitted that with a view to keep up the appearance of benami in the municipal records of Kendrapara Municipality, the name of opposite party No. 1 was duly entered and the municipal receipts for payment of taxes were also granted in the name of opposite party No. 1. Early in February 1958 Petitioner No. 1 ceased to be the servant of opposite party No. 1 and though, during the next two or three months after his leaving service he was called upon by opposite party No. 1 to render accounts and to return all the papers, he evaded compliance and then, on the 5th June 158 Petitioner No. 1 suddenly executed a sale deed in favour of his wife (opposite party No. 2) conveying the disputed property to her in repayment of his dower debt. Opposite party No. 1 thereupon filed a petition before the Sub-divisional Magistrate, on the 7th June 1958 -for preventive action against the Petitioner and his helpers as he apprehended breach of peace from them so far as his possession of the disputed land was concerned. After the usual police enquiry a preliminary proceeding u/s 145 Code of Criminal Procedure was commenced on the 9th August, 1958. 3. Both parties filed affidavits of several persons in respect of their respective contentions regarding the exclusive possession of the property. Two of the affidavits however require special mention. They are, (1) that of Sri Dinabandhu Sahu a former Minister of the Government of Orissa and an Advocate of Cuttack and (2) that of Sri Ban Behari Harichandan, a Council lV of Kendrapara Municipality. Sri Dinabandbu Sahu has no personal knowledge of the actual possession of the disputed property but be knows the parties very well and he has stated in his affidavit that Petitioner No. 1 was formerly a servant of opposite party No. 1 as the driver of his Service Bus from Kendrapara to Jagatpur. It appears that he also attempted to settle the dispute between the parties sometime in June 1958 in the presence of Bhadralogs. According to him Petitioner No. 1 admitted that the sale deed executed in his favour by the opposite party No. 1 in 1956 was a benami document. The Bhadralogs, including Sri Sahu, after hearing both sides decided as follows: 1st. party No. 1 should no more insist upon return of the land and should get satisfied after getting a reasonable consideration from the second party No. 1 and give receipt to second party No. 1 or to his wife as a token of payment of consideration in order to "validate the benami Kabala which be had already execute in favour of the 2nd party No. 1 who in his turn has executed a Kabala in favour of his wife. The above passage in the affidavit of Sri Dinabandhu Sahu seems to imply that the plot in dispute was in the possession of Petitioner No. 1 otherwise the reference to opposite party No. 1 (first party) not insetting on the return of the land would be without any significance. 4. The above passage in the affidavit of Sri Dinabandhu Sahu seems to imply that the plot in dispute was in the possession of Petitioner No. 1 otherwise the reference to opposite party No. 1 (first party) not insetting on the return of the land would be without any significance. 4. The lower court quite properly, attached great weight to the affidavit of Sri Dinbandhu Sahu and held that the sale deed of 1956 in favour of Petitioner No. 1 was a benami document. He did not however carefully examine the affidavits with a view to find out who was actually in possession of the property either on the date of the preliminary order u/s 145 Code of Criminal Procedure viz. 9th August 1958, or within two months prior to that date. After a somewhat superficial discussion of the affidavits he declared possession in favour of opposite party No. 1. Though the earliest petition for preventive action was filed by opposite party No. 1 on the 7th June 1958, no order u/s 144 Code of Criminal Procedure was passed by the Sub-divisional Magistrate. Consequently, as pointed out in Gangadhar v. Syam Sundar Singh the relevant date for the purpose of Section 145 Code of Criminal Procedure will be the date on which that proceeding was instituted, viz. 9th August, 1958 and not the date on which the earliest petition for preventive action was filed, viz. 7th June, 1958. 5. In my opinion, the affidavits and other petitions filed by opposite party No. 1 and some of his statements in his written statement are themselves sufficient to show that he was not in actual possession of the disputed property at the relevant date. Admittedly he is an Advocate practising in Cuttack. It was also admitted by him in his written statement that on account of his absence at Cuttack, he had entrusted the affair relating to his properties at Kendrapara and Jagatpur, to Petitioner No. 1 who was then serving under him. In paragraph 7 of his written statement he further admitted that second party No. 1 was undertaking the annual and special repairs to the houses, buildings, gardens and garages, collecting rent from monthly tenants, paying municipal taxes and income tax and was doing other work on behalf of opposite party No. 1 as his servant. In paragraph 7 of his written statement he further admitted that second party No. 1 was undertaking the annual and special repairs to the houses, buildings, gardens and garages, collecting rent from monthly tenants, paying municipal taxes and income tax and was doing other work on behalf of opposite party No. 1 as his servant. Again in paragraphs 11 and 12 he further admitted that after commencing construction of the shop-houses on the disputed plot, he entrusted this work to Petitioner No. 1 who completed the same and let out the shops to various short-term tenants on rent and collected rent from them. Thus, it seems clear that actual possession of the disputed property remained with Petitioner No. 1. But according to opposite party No. 1 such possession was only the possession of a servant or agent. The same conclusion would emerge if the earliest petition of opposite party No. 1 for action u/s 144 Code of Criminal Procedure dated the 7th June, 1958 be carefully scrutinised. Similarly Sri Banbehari Srichandan who is a Councillor of Kendrapara Municipality has stated that the construction of the shop house on the disputed plot letting out the shops on rent to tenants and collection of rent from shop keepers, were done by Petitioner No. 1. 6. It was however contended on behalf of opposite party that in a proceeding u/s 145 Code of Criminal Procedure possession of a servant must be deemed to be possession of master. Balak Das v. Bhagivan Das was relied on in support of this contention. On behalf of the Petitioners however it word recorded relying on Thakur Jaikrit Singh and Ors. v. Sohan Raj that actual possession alone was relevant in a proceeding u/s 145 Code of Criminal Procedure and that it is immaterial if such possession was by a person as a servant or agent of his master or principal. For the purpose of deciding this case it is unnecessary to consider whether in a dispute between a master and his servant arising out of a proceeding u/s 145 Code of Criminal Procedure the possession of the servant on behalf of his master will be considered as possession by his master. This question may be left open for decision in an appropriate case. Here on the statements made by opposite party No. 1 himself, Petitioner No. 1 ceased to be his servant as early as February 1958. This question may be left open for decision in an appropriate case. Here on the statements made by opposite party No. 1 himself, Petitioner No. 1 ceased to be his servant as early as February 1958. This has been clearly mentioned in paragraph 5 of his petition before the Magistrate dated the 7th June 158 while praying for action u/s 144 Code of Criminal Procedure as follows: On the 24th February, 1:158 opposite party No. 1 left the Petitioner?s service improperly without the Petitioner?s knowledge and has been evading to render charge of the accounts and properties in his charge. For the purpose of this proceeding it is unnecessary to consider whether the Petitioner No. 1?s leaving the services of opposite party No. 1 was improper or not. The fact remains that he left the service of opposite party and ceased to be hid servant. In the written statement of opposite party No. 1 also it is admitted in paragraphs 23, 24, 25 and 26 that after leaving service Petitioner No. 1 tried to commit various acts injurious to the interests of opposite party No. 1 and that he refused all offers to take him back and "preferred to go out of service rendering all accounts pending with him". There was a further dispute between the parties about the rendering of accounts which continued till the end of May, 1958. Mr. Ban Behari Harichandan?s affidavit also -is on sliminess and there id mention therein that on the 1st. June 1958 it was known to all concerned that Petitioner No. 1 was not a servant of opposite party No. 1. It is not the case of opposite party No. 1 that after the termination of the service of Petitioner No. 1, he (the opposite party) regained possession of the disputed property from the Petitioner. On the other hand his written .statement show that the existing state of things continued. Thus one Krushna Behera a cycle repairer was formerly occupying ?one of the shop houses and paying rent to Petitioner No. 1. He was driven away by the latter in the first week of June 1953. His affidavit dated 20th August 1958 shows that he took on rent the shop-house from Petitioner No. 1 and paid rent to him till the 1st. June 1958. He was driven away by the latter in the first week of June 1953. His affidavit dated 20th August 1958 shows that he took on rent the shop-house from Petitioner No. 1 and paid rent to him till the 1st. June 1958. After that date, when he paid rent to opposite party No. 1 and agreed to pay future rents to him, Petitioner No. 1 immediately .turned him out of the shop house. Thus, opposite party No. 1 never regained possession of the shop-house from Petitioner No.. Hence I must bold that assuming that the possession of the property by Petitioner No. 1 was originally that of a servant on behalf of his master, that possession became his own when he-continued to remain in possession even after leaving the service of opposite party No. I some time in February 19;=)8 and also went to the length of executing a sale deed in favour of his wife (opposite party 110. 2) on the 5th June 1958-more than two months prior to the commencement of the proceeding u/s 145 Code of Criminal Procedure Hence, his possession, even if it be held to be unlawful, must be maintained by the criminal court. 7. Realising this difficulty, an ingenious plea was put forward on behalf of opposite party No. 1 to the effect that the shop-house occupied only half a cent and that the remaining 6? cents were not in the possession of the Petitioner, but in the possession of one Mathura Sahn who grew vegetables thereon as a bhag tenant under opposite party No. The question, therefore, arises whether the story of Mathura Sahu growing vegetables on a major portion of the disputed land as a tenant under opposite party No. 1, is believable. The main difficulty in accepting this story lies in the fact that Mathura?s name does not find any place in the earliest petition dated the 7th June 1958, filed by opposite party No. 1. There is also no mention in that petition about the growing of any vegetables. Similarly, the affidavit of Banbehari Harichandan is also silent a bout Mathura Sahu growing vegetables on any portion of the disputed property. In paragraph 9 of the affidavit of Shri Dinabandhu Sahu it is stated that the Bhadralogs decided that one cent of land should be given to Mathura Sahu. Similarly, the affidavit of Banbehari Harichandan is also silent a bout Mathura Sahu growing vegetables on any portion of the disputed property. In paragraph 9 of the affidavit of Shri Dinabandhu Sahu it is stated that the Bhadralogs decided that one cent of land should be given to Mathura Sahu. If Mathura Sahu was really in possession of 6 cents as a tenant under opposite party No. 1 it is difficult to believe that the Bhadralogs would have decided to give him only the cent on him paying consideration for the same to opposite party No. 1. 8. For these reasons I am not inclined to accept the statement of opposite party No. 1 that Mathura Sahu was growing vegetables on a substantial portion of the disputed property as a tenant under him. Even if vegetables had been grown at some time in the past, on any portion of the property, the rent in respect of the same must have been paid to Petitioner No. 1 who was admittedly looking after all the properties of opposite party No. 1. 9. Some unregistered leases were filed in the proceeding but their genuineness was open to grave doubts. I think in a summary proceeding u/s 145 Code of Criminal Procedure, the absence of the name of Mathura Sahu in the earliest petition dated the 7th June 1958 must be fatal to the case of opposite party No. 1. 10. For the aforesaid reasons I am of opinion that the disputed property was in the actual possession of Petitioner No. 1, in assertion of his independent title more than two months prior to the commencement of the present proceeding u/s 145. Code of Criminal Procedure and that the criminal court was bound to maintain the same. 11. The order of the lower court is reversed, and Petitioner No. 1 is declared to be entitled to possession of the disputed property, and all the disturbance of such possession is prohibited until be is evicted in due course of law. Possession of the property has been taken by opposite party No. 1 in pursuance of the order of the lower court that party should restore possession to Petitioner.