ORDER.- The dispute in this case concerns T.S. No. 351/2, in Tiruchirappalli Town, and is between a Durga represented by its Trustee Syed Jaffar and some Hindu residents of the locality in their capacity as Managers and Trustees of certain Hindu temple. In a prior litigation between the Durga and the Hindu residents culminating in the decision of this Court dated 25th August, 1954 in S.A. No. 1032 of 1950, Krishnaswami Nayudu, J., held that the site belonged to the Durga but was subject to the customary right of the Hindus to use portions of the site for certain festivals on certain occasions for certain limited purposes. The Trustee of the Durga, however, put in a petition on 14th April, 1965 to the Revenue Divisional Officer, Tiruchirappalli (in his capacity as the Executive First Class Magistrate) quoting sections 149 to 151, Criminal Procedure Code alleging that the Hindus were trying to put up a shed in excess of the customary right. The learned Magistrate passed the following order: “ Taken on file under section 145, Criminal Procedure Code and issue notices to both sides for enquiry on 19th April, 1965.” No specific order, however, as required under section 145 (1), Criminal Procedure Code was passed. Actually the summonses which were issued to the counter-petitioners in the petition were in Form No. 68-(summons in a case instituted on complaint). Statement were put in by the counter-petitioners, and, on perusing the statements of both sides, the learned Magistrate dismissed the petition of the Durga on the ground that the Thennur Village where in the site lay had been taken over by the Government under the provisions of the Madras Estates Abolition Act (XXVI of 1948), that consequently the title no longer vested with the Durga. and that it was for the Revenue Department of the Government to take action to evict the counter-petitioners. Against that order dated 15th May, 1965 this revision petition was filed by the Trustee of the Durga. and that it was for the Revenue Department of the Government to take action to evict the counter-petitioners. Against that order dated 15th May, 1965 this revision petition was filed by the Trustee of the Durga. On 14th February, 1966, I passed an order pointing out that the application for patta under the provisions of the Madras Estates Abolition Act which had been put in by the Durga was still pending with the Collector, and that till it was disposed of it was necessary to pass interim orders maintaining the existing rights of the two sides as found by Krishnaswami Naidu, J. Since the parties however, differed on the extent of the respective rights as found by Krishnaswami Naidu, J., I called for a report, and the learned Additional First Class Magistrate, Tiruchirappalli, has submitted a report. The report shows that the dispute is over a right claimed by the Hindus to put up a shed 20 feet x 10 feet, almost near the entrance to the Durga. They claimed that the shed had been existing in that place for over 40 years, all the year round, that during times of festivals additional sheds were pat up for increased accommodation and that in the permanent shed some heavier parts of the chariot of the Hindu temples were stored. They alleged that some time before 14th April, 1965 that shed had fallen into disrepair and that they were only trying to renovate the shed and put up a new shed in its place. On the other hand, the Durga alleges that there was no such shed at all in that place all the year round, that formerly temporary sheds used to be put up only during times of festivals and that the shed was clearly an innovation. The learned Magistrate, on examining the evidence, oral and documentary adduced before him, has accepted the case of the Durga. There can be no doubt that this conclusion is correct on the materials available to the Court at this stage. Apart from the reasons given by him, I may point out a very tell-tale circumstance, against the contention of the Hindus, namely that in the earliest written statements filed by them they did not allege that there had been a shed in that place for over 40 years that it has fallen into disrepair and that they were only trying to reconstruct it. It seems to me that, if there was any truth in this allegation they would normally have made such an allegation. There are also the circumstances pointed out by the learned Magistrate, namely, that in the prior litigation’ O.S. No. 55 of 1946, District Munsif’s Court, Tiruchirappalli, neither in the plaint, nor in the plan of the Commissioner nor in the Town Survey Field Register was there any reference to the existence of such a permanent shed. If these were all, this Court would be justified in directing removal of the shed, giving however a reasonable time to the Hindu residents to file a suit and obtain an order of injunction contra ordering retention of the shed till the final decision of the dispute in the suit. But unfortunately for the Durga, there is an insurmountable difficulty raised by the Hindus through their learned Counsel, Sri A. Nagarajan. The learned Counsel points out that the foundation for passing any order under section 145, Criminal Procedure Code, is lacking in this case, because of the absence of the order contemplated in section 145 (1), Criminal Procedure Code. I have already pointed out that the only thing which may be called an order is the note of the learned Magistrate taking the case on file under section 145, Criminal Procedure Code, and directing issue of notices. But that is not at all the order which is contemplated under section 145 (1), Criminal Procedure Code. This is clear from a series of decisions of this Court, the last of which is that of Balakrishna Ayyar, J., in Pakamaraja Naicker v. Chidamoara Nadar1, which has been followed by the Andhra Pradesh High Court in Kondappa v. Ram Rao2. The point is not merely a technical one and is a matter of substance, because under section 145 (1), Criminal Procedure Code, the date of the order under section 145 (1) is crucial, because it is with reference to that date the Court has to decide as to which party was in possession on that date. The second proviso also makes that date crucial because if a party had been dispossessed by force within two months before that date, that party might be treated as in possession on the date of the order. The second proviso also makes that date crucial because if a party had been dispossessed by force within two months before that date, that party might be treated as in possession on the date of the order. Sri Ali Mohammed, the learned Counsel for the petitioner-Durga, however, seeks to get over the above difficulty by urging that though the case was taken on file Under section 145, Criminal Procedure Code, the dispute raised really fell under section 147, Criminal Procedure Code, and that under section 147,Criminal Procedure Code, it was not essential that the Magistrate should pass any preliminary order. He also cites Chhuttan v. Ali Hussain3 in support of the proposition that a proceeding though started under section 145, Criminal Procedure Code, could be converted into one under section 147, Criminal Procedure Code. There seem to be material differences between section 145 and section 147, Criminal Procedure Code in that section 147 says that the Magistrate may make an order in writing stating the grounds of his being satisfied about the likelihood of a breach of the peace, whereas section 145 (1), Criminal Procedure Code, indicates that he shall make an order in writing stating the ground of his being so satisfied. Further, unlike section 145 (4), the date of the order in section 147 (1) is not crucial or determinative of the rights of the parties. Section 147 (2), Criminal Procedure Code, says that the relevant date of the determination of the alleged right to user is the institution of the enquiry. If the proceeding could be considered as cue under section 147, Criminal Procedure Code, this Court would prima facie have jurisdiction to pass an order as the Magistrate could have done directing the Hindus to remove the newly put up shed as indicated in the earlier portion of this judgment. But it is unnecessary to express a final opinion on the question because there is difficulty in converting the proceeding under section 145, Criminal Procedure Code, into one under section 147, Criminal Procedure Code, in this case. It is true that the Durga concedes the temporary right of the Hindus to use the site on the occasions of the festivals and to put up temporary sheds, then. It is true that the Durga concedes the temporary right of the Hindus to use the site on the occasions of the festivals and to put up temporary sheds, then. But the right claimed by the Hindus could more appropriately be said to raise a question of possession under section 145, Criminal Procedure Code, because they claim the right to have the shed there all the year round in exercise of their alleged right. Virtually it amounts to a claim of possession of that portion of the site. It may be that the claim is untenable, but the nature of the claim is relevant for determining whether the proceeding was one which was rightly initiated under section 145, Criminal Procedure Code, or could be taken to have been instituted under section 147, Criminal Procedure Code, from the inception. In this view of the matter, I do not think it will be proper or even quite legal to pass an order directing the Hindus to remove the shed. The petition is accordingly dismissed. In my view, it is open to the Durga to institute a suit for the purpose of preserving their existing rights, pending disposal of the application for patta filed by them before the Collector. But whether such a suit will lie will eventually have to be decided by the Court where the suit may be instituted. R.M. ------------- Petition dismissed.