JUDGMENT : G.K. Misra, C.J. - One Mohan had four sons Baikuntha (dead), Budhuram (second party No. 1), Khetramohan (dead) and Karunakar (second party No. 2). Pratap (second party No. 3) is the son of Baikuntha. Mandari Bewa (first party) is the widow of Khetramohan. Kailash (second party No. 4) is the son of Karunakar. The member of the first party filed an application u/s 145, Code of Criminal Procedure on 30th of May, 1970 alleging that in a family partition during the life time of her husband the disputed land was allotted to her husband's share. The disputed land was described by her as one acre of land. In that petition she alleged that on 28-5-1970 members of the second party sowed paddy and she was unable to keep the disputed land in her possession. The learned Magistrate called for a report from the Officer-in-charge, Raruan P.S. who submitted it on 22nd of January, 1971. The preliminary order was passed on 27-1-1971. The disputed land as appears from the preliminary order is one acre twelve decimals in plot No. 127 in Khunti No. 80 of village Haladia. The case of the second party members is that in 1930-31 the four branches were separately recorded in respect of properties allowed to them in partition. Some of the properties remained joint. The properties which stand joint are two tanks, one mango tope, one granary and the disputed properties. The record-of-rights (Ext. A/2) shows that the disputed land stands recorded in the name of Baikunthanath Ghana and others. Their is case that for some years after the death of Khetramohan, Mandari was allowed to enjoy the usufruct on Thika basis and expressing her inability to pay the repairing charges she gave up possession of the disputed land to the members of the second party about 15 to 17 years back and since then second party members are in cultivating possession over the disputed land and are paying rent as would appear from Ex. B-series. The first party filed a criminal case and being unsuccessful has filed this application. After going through the written statements, affidavits and documents the learned Magistrate declared that the first party member was in possession on the date of the preliminary order. The second party members have filed the criminal revision against the impugned order dated 22-4-1972. 2. Mr. B-series. The first party filed a criminal case and being unsuccessful has filed this application. After going through the written statements, affidavits and documents the learned Magistrate declared that the first party member was in possession on the date of the preliminary order. The second party members have filed the criminal revision against the impugned order dated 22-4-1972. 2. Mr. B. Ray for the Petitioners raised the following contentions: (i) The final order passed in the proceeding u/s 145, Code of Criminal Procedure is in respect of one acre twelve decimals while the first party member claimed only one acre in her application u/s 145 Code of Criminal Procedure. (ii) On the admitted case of the first party that she was dispossessed on 30th of May, 1970 and the preliminary order was passed on 27-1-1971, possession in her favour could not have been declared u/s 145(4), second proviso, of the Code of Criminal Procedure. (iii) Partition of the joint family property having not been substantiated a proceeding u/s 145, Code of Criminal Procedure is incompetent. 3. The learned Magistrate has considered the affidavits and the documentary evidence. After having carefully gone through them I am of opinion that the assessment of evidence is not unsatisfactory. No case is made out for re-assessment of evidence in a criminal revision as is done in a criminal appeal. I do not accordingly interfere with the finding of the learned Magistrate that Mandari was in possession of the disputed property till 30-5-1970 when she was dispossessed. 4. The contention of Mr. Ray that dispossession being on 30-5-1970 and the preliminary order having been passed on 27-1-1971, the order declaring possession in favour of the first party is contrary to Section 145(4), second proviso, requires closer examination. 5. 4. The contention of Mr. Ray that dispossession being on 30-5-1970 and the preliminary order having been passed on 27-1-1971, the order declaring possession in favour of the first party is contrary to Section 145(4), second proviso, requires closer examination. 5. Section 145(4), second proviso runs thus: The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: xx xx Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date. Ordinarily if a party has been dispossessed within two months next before the date of the preliminary order forcibly and wrongfully, by legal fiction he shall be deemed to be in possession of the disputed land on the date of the preliminary order. If he has been dispossessed not within two months but beyond two months of the preliminary order, then the person who was wrong fully and forcibly dispossessed would be declared in possession on the date of the preliminary order as he was continuing in possession from the date of dispossession till the date of the preliminary order. 6. A Magistrate is to initiate a proceeding u/s 145, Code of Criminal Procedure only when he is satisfied that there is apprehension of breach of peace. That satisfaction can be derived even independent of police report from an application filed by a party is now concluded by R.H. Bhutani Vs. Miss Man J. Desai and Others. It is very often noticed that when an application is filed before the Magistrate u/s 145, Code of Criminal Procedure he sends it to the police for enquiry and report. At that level long delay beyond two months very often occurs. Miss Man J. Desai and Others. It is very often noticed that when an application is filed before the Magistrate u/s 145, Code of Criminal Procedure he sends it to the police for enquiry and report. At that level long delay beyond two months very often occurs. If the second proviso to Section 145(4) is literally construed, then the aggrieved party would not be entitled to any relief for the negligence of the police and the Magistrate. It is on account of this that there is wide divergence of judicial opinion as to whether the party should suffer on account of the negligence and laches of the Court in not initiating a proceeding u/s 145, Code of Criminal Procedure in time. So far this Court is concerned, Chief I Justice B.K. Ray put a narrow and strict construction on the proviso in Janama Bhoi and Another Vs. Draupadi Bhoiani. Chief Justice Panigrahi took a contrary view in Smt. Subarna Sunami and Others Vs. Kartika Kudei and Others. The matter came up before a Division Bench in Gangadhar Singh and Others Vs. Shyam Sunder Singh. After examining the divergence of opinion in this Court and elsewhere in India, their Lordships were of the view that if the party was vigilant in reminding the Magistrate that unless a proceeding u/s 145 is initiated within two months of the filing of the application his remedy would be barred, then the party should not suffer on account of the laches of the Court. The Division Bench held that if the party after filing the application slept over the matter, then he must suffer even though the Court was negligent. If, on the other hand, the party was vigilant and was drawing attention of the Magistrate to the urgency of the matter and to take immediate steps, then the period would be enlarged and he will be declared to be in possession of the property on the date of the preliminary order even though the date of dispossession from the date of the preliminary order is beyond two months. We are bound by the Division Bench decision even though in the latest decisions of the other High Courts a contrary view has been taken see Athiappa Gounder and Ors. v. S.A. Athiappa Pandamm A.I.R 1967 Mad. 445 (F.B.). 7. In the light of the aforesaid principle this case must be examined. We are bound by the Division Bench decision even though in the latest decisions of the other High Courts a contrary view has been taken see Athiappa Gounder and Ors. v. S.A. Athiappa Pandamm A.I.R 1967 Mad. 445 (F.B.). 7. In the light of the aforesaid principle this case must be examined. In her application on 30th of May, 1970 first party member alleged her dispossession by the second party members with effect from 28-5-1970. She filed several petitions before the Magistrate for taking action u/s 145, Code of Criminal Procedure. Those petitions were filed on 25-7-1970, 28-9-1970, 19-10-1970 and 10-11-1970. The first reminder filed on 25-7-1970 was clearly within two months from the alleged date of dispossession on 28-5-1970. The Magistrate was callous and took no action. She has been subsequently reminding him. She cannot, therefore, suffer on account of the negligence and laches of the Magistrate. If it is found that she was forcibly and wrongfully dispossessed by the members of the second party on 28-5-1970 she is entitled to be declared in possession on the date of the preliminary order in view of her vigilant steps taken on several dates to remind the Magistrate to take emergent action u/s 145, Code of Criminal Procedure. In the facts and circumstances of this case I repel the contention of Mr. Ray. 8. The last contention is that in her application the first party claimed one acre of land while in the preliminary order it was one acre 12 decimals. Doubtless, this discrepancy is there and if the matter would have been brought to the notice of the learned Magistrate he would have deputed a Commissioner to prepare a map to exactly identify the disputed land. There is no dispute about the identity of the land itself. The only dispute is as to its area on the spot. The case would go back to the learned Magistrate only to depute a Commissioner to prepare a map of the disputed land and to identify the same. 9. Subject to the observation that the learned Magistrate would depute a Commissioner to prepare a map of the disputed land the criminal revision is dismissed. Final Result : Dismissed