JUDGMENT : Narasimham, C.J. - This is a reference by the Additional District Magistrate of Bolangir, for cancelling a final order u/s 145 Code of Criminal Procedure passed by the Sub-divisional Magistrate of Titilagarh, in favour of the first party (opposite party). The grounds urged for cancelling the order are these: (i) The learned Magistrate examined four witnesses of the second party even though they had not filed affidavits. (ii) The court relied mainly on the record of rights at the last Settlement and the decree in a previous partition suit and did not discuss the affidavits of the first party. (iii)The Court did not come to a clear finding that there was apprehension of breach of peace. 2. I have carefully gone through the judgment of the learned Magistrate and I do not think this is a fit case for in referring with his order. 3. So far as the first ground is concerned the learned Additional District Magistrate is undoubtedly right in saying that the Magistrate should not have examined the witnesses of the second party without their having put in their affidavits prior to their examination as witnesses. This follows as a necessary inference from the proviso to Sub-section (4) of Section 145 Code of Criminal Procedure as construed in AIR 1938 Ori 79. In Criminal Reference No. 82160 disposed of today I have reiterated the same view following a recent decision of the Punjab High Court reported in S. Jodh Singh and Others Vs. Mahant Bhagambar Dass and Others. But this illegality cannot be a ground for cancelling the order because after examining the witnesses cited by the second party he disbelieved them and believed the evidence of the first party. The second party can not therefore say that they were prejudiced by the commission of this illegality by the Magistrate. The illegality was committed in their favour, though the Magistrate ultimately disbelieved the witnesses cited by the second patty. Hence the Magistrate's order should not be interfered with on this ground. 4. As regards the second ground the learned Additional District Magistrate is not right in saying that the Magistrate mainly relied on the record of rights and the decree in the partition suit. The record of rights has undoubtedly a presumption value on the question of possession also. The decree in the partition suit has also great value. 4. As regards the second ground the learned Additional District Magistrate is not right in saying that the Magistrate mainly relied on the record of rights and the decree in the partition suit. The record of rights has undoubtedly a presumption value on the question of possession also. The decree in the partition suit has also great value. The learned Magistrate has given reasons as to why he did not believe the witnesses examined by the second party; he has characterised them as interested and unreliable. From this it necessarily, follows that he prerecord the evidence of the first party. The mere absence of a detailed discussion of the evidence of the first party will not be a ground for setting aside the order of the Magistrate, Especially when he has taken note of an important piece of documentary evidence on the side of the first party. 5. As regards the third ground though the Magistrate has not expressly stated in the final order that apprehension of breach of peace, still continued such an inference follows by implication. The proceedings were started because of apprehension of breach of peace. Both parties fought out their litigation before the Magistrate and an order was passed on contest. It was not alleged by either party that the original apprehension of breach of peace had ceased on the date of passing of the final order. Even in this Court the Criminal Reference was fought out on contest. Under these circumstances it may be reasonably inferred that the apprehension of breach of peace continued to exist all along, and the mere omission of the Magistrate to mention it in his final order whole not be a ground for interfering with that order. 6. The reference is discharged and the final order of the Magistrate dated 10-5-60 is maintained.