ORDER H.C.P. Tripathi, J. - This revision is directed against an order of a Magistrate 1st Class at Ghazipur in a case u/s 145 Code of Criminal Procedure. 2. On a report from the police that there was an apprehension of breach of peace between Ishwar Rai and Krishna Kumar Rai on account of their dispute relating to land, a preliminary order was passed by the Magistrate on 26.3.62 attaching a number of plots and directing the two parties to file their written statements and to lead evidence in respect of their claim over the attached property. Subsequently, it appears that the applicants Udai Narain Rai and Param Hans Rai also got themselves impleaded as parties to the case. 3. In his written statement Jshwar Rai asserted that there was no apprehension of breach of peace and that the plots were his Bhumidhari land over which he had been given possession since a long time and the other party had no connection with it. Ishwar Rai, Baijnath and Sheo Daras Rai filed affidavits in support of Ishwar Rai's exclusive claim over the plots in dispute. Param Hans also asserted to be in exclusive possession of the plots but did not rile affidavits in support of his claim. Krishna Kumar in his written statement alleged that there was no apprehension of breach of peace, that the land in question was the joint Bhumidhari land of a number of shareholders, that Ishwar Rai was not in possession of the land and that as the co-sharers could not come to terms about the cultivation of the land, they decided in Jeth last in order to avoid an internecine quarrel, that Udai Narain who was the major shareholder in the land should continue in possession of the same on behalf of all till the matter was finally settled and that it was Udai Narain who in accordance with the agreement between the co-sharers was in possession of the land. He filed an affidavit in assertion of his claim. 4. He filed an affidavit in assertion of his claim. 4. The case of Udai Narain was similar to that of Krishna Kumar that the land in question belongs to a number of co-sharers who are all of the same family, that one fourth in the land was owned by him and that the rest three-.ourth was owned by 39 co-sharers including Ishwar Rai and that in accordance with the settlement arrived at between the co-sharers he was in possession of the land on behalf of all and that the case of Ishwar Rai to be in exclusive possession of the land was false. In support of the claim of Udai Narain, a number of co-sharers, namely, Prahlad, Abhai Narain and Chiranjiv filed their affidavits. Two otner residents of the village Ram Chandra and Raja Ram also supported Udai Narain's claim on affidavits. A number of extracts from revenue records were also brought on the record which indicated that the plots in dispute were the joint Bhumidhari of 40 persons including Ishwar Rai, Krishna Kumar and Udai Narain. On 26.4.62 Krishna Kumar filed an application before the Magistrate alleging that the land in dispute was the joint Bhumidhari of a number of co-sharers, that a suit for partition in accordance with Section 176 of the UP ZA and LR Act was pending in court and that the rights of the parties would be finally determined in that suit and that the Magistrate was entitled to appoint a receiver within the provisions of Section 145 Code of Criminal Procedure and that the proceedings should be dropped or stayed till the matter was finally decided in the partition suit. This application, however, was rejected by the Magistrate. 5. The learned Magistrate rejected the claim of Param Hans as there was no evidence in support of it. He rejected the claim of Krishna Kumar as he himself had admitted that the land was not in his possession. He was of opinion that the evidence on the record showed that it was Ishwar Rai who was in exclusive possession of the land and therefore released the land in his favour restraining the other co-sharers from interfering with his possession. I have heard the learned Counsel for the parties. 6. There can be no doubt that the order passed by the learned Magistrate is wholly unconscionable and perverse. I have heard the learned Counsel for the parties. 6. There can be no doubt that the order passed by the learned Magistrate is wholly unconscionable and perverse. In his order the learned Magistrate has remarked that "there are about 40 co-tenure holders in the Khata. It can never be believed that they were all carrying on cultivation jointly prior to giving their consent to Sri Udai Narain Rai to cultivate on their behalf." He was also of the opinion that the case of Udai Narain Rai was not reliable because it had been supported by five co-tenure-holders who were all interested persons. To say the least, this reasoning is wholly erroneous. The co-tenure-holders who had supported the case of Udai Narain Rai had done so against their own interest and therefore to call them interested witnesses is absolutely perverse. If they had stated to have been themselves in possession of the land then, their evidence could be rejected on the ground that they were interested in the land. On the other hand, here was a case where a large number of co-sharers were-speaking in favour of Udai Narain who held a major share in the land. 7. It is difficult to believe that if the land belongs to 40 persons and if Udai Narain holds a major share, he and other cosharers would allow a person holding an infinitesimal share in the land to occupy whole of it to the exclusion of others. This aspect of the case was completely lost sight of by the Magistrate when he relied on the affidavit of Baijnath and Sheo Daras who had no interest in the land and had nothing to lose whether it went to Ishwar Rai or Udai Narain. It was very easy for them to have come in court and state about other's property that it was in possession of Ishwar Rai. 8. There is another reason also why the order of the Magistrate must be set aside. The Magistrate has not considered the affidavits of Ram Chandra and Raja Ram who had supported the case of Udai Narain. 9. The reason given by the learned Magistrate for upholding the claim of Ishwar Rai that it was supported by the entries in the Khasra in the year 1356 and 1359 Fasli is also untenable, because the entries do not relate to all the plots in question. 9. The reason given by the learned Magistrate for upholding the claim of Ishwar Rai that it was supported by the entries in the Khasra in the year 1356 and 1359 Fasli is also untenable, because the entries do not relate to all the plots in question. Moreover, the question before the Magistrate was to find out as to which of the parties was in possession of the plot within two months of the preliminary order and revenue record of a period 10 years prior to that date was hardly material for deciding the question. 10. In a case of the present nature where admittedly the land belongs to a number of co-tenure holders, unless the evidence of possession in favour of one who holds only a. fraction of the share in the land was unequivocal and conclusive, he should not be allowed to come in possession of the land to the exclusion of the other co-tenure holders. If the evidence of possession is not decisive, the land can remain under attachment to avoid the possibility of a breach of peace between them, till the matter is finally decided by a competent court. 11. It is no doubt true that proceedings u/s 145 Code of Criminal Procedure are summary in nature and do not decide the rights of the parties finally. It is, however, also true that once a party is put in possession of the property in dispute, it gets certain advantages against the party ousted from possession. Therefore, where in a case u/s 145 the evidence of possession is equally balanced between the parties who are entitled to the land, the Court should look to the question of title to rind out as to whose possession is in accordance with the same. 12. A certified copy of the plaint of the partition suit pending before the revenue court in respect of the land filed by the co-sharers was tiled here by the learned Counsel for the applicant. He also filed a copy of the written statement of Ishwar Rai filed in that case. In his written statement Ishwar Rai has asserted that the entire land belongs to him and Udai Narain in proportion of half and half, though it appears that the case of Udai Narain is that he owns only one-fourth share in the land. He also filed a copy of the written statement of Ishwar Rai filed in that case. In his written statement Ishwar Rai has asserted that the entire land belongs to him and Udai Narain in proportion of half and half, though it appears that the case of Udai Narain is that he owns only one-fourth share in the land. Be that as it may, the fact remains that a suit for the partition of the land is pending in regular courts and the learned Magistrate should have given due consideration to that fact. 13. In the result, the order passed by the learned Magistrate is set aside. The case is remanded back to him with a direction that after taking into account the affidavits filed by Ram Chandra and Raja Ram, he will decide the question as to which of the parties was in actual possession of the land in dispute on the date of the preliminary order or within two months next before the date of such order in accordance with Section 145 Code of Criminal Procedure. In case the evidence on the record is not sufficient to hold any of the parties in exclusive possession of the land, he will consider the desirability of keeping it under a receiver till the matter is finally decided by the revenue court in the partition suit which is pending between the parties.