JUDGMENT 1. - This is an application in revision filed by Pema Ram and Bhagwan Ram against an order of the Sessions Judge, Sri Ganganagar, dated 11th January, 1975, by which the order of the Sub-Divisional Magistrate, Hanumangarh, dated 26 February, 1974, in a proceeding under S. 145, old Criminal Procedure Code, declaring the possession of the two petitioners on 15 Bighas of Agricultural land in Chak No. 6 KHM of village Khantawali, Tehsil Suratgarh, was set aside and the possession of Bhagirath, non-petitioner No. 1, was declared thereon at the date of the preliminary order and within two months next before it until he was evicted therefrom in due course of law. It was further ordered by the Sessions Judge that the possession of the land shall be delivered to Bhagirath and the sale proceeds of the crop shall be paid to him after deducting 10% commission. 2. The relevant facts giving rise to this revision-petition may be shortly stated as follows : Bhagirath presented an application under section 145, old Criminal Procedure Code in the court of the Sub-Divisional Magistrate, Hanumangarh. It was alleged in the application that 15 Bighas of land comprising Khasra Nos. 39/274, 38/247 situated in chak No. 7 K.H. N. of Khatnawali village was allotted to Bhagirath's brother Ram Chander, who cultivated this land in his life time. Ram Chander died in the month of October, 1970, leaving no issue behind him. and Pema Ram, Bhagwana Ram and Bhagirath only are his legal heirs. After the death of Ram Chander, Bhagirath claimed to have paid remaining price of the land amounting to Rs. 1900/-. Hence it was decided in a Panchayat of respectable persons of village Khatnawali that the land of Ram Chander deceased would remain in the possession of Bhagirath for two years in lieu of the remaining price of the land paid by him and that Bhagwana Ram and Pema Ram petitioners would not interfere with the cultivatory possession of Bhagirath during the period of two years. It was alleged that after this decision, Bhagwana Ram and Pema Ram turned dishonest and tried to get the land of the disease mutated in their names by Tahsildar, Suratgarh, in the month of September, 1972. It was alleged that after this decision, Bhagwana Ram and Pema Ram turned dishonest and tried to get the land of the disease mutated in their names by Tahsildar, Suratgarh, in the month of September, 1972. As soon as Bhagirath came to know of their dishonest intention to grab the land, he filed an application on 30th September, 1972, before Shri Yogendra Nath Handa, M. L. A. at Suratgarh, who forwarded it to the Tahsildar, Suratgarh, for consideration and necessary action. The land of Ram Chander had been in the possession of one Lekh Ram son of Ladu Ram Jat R/o Khatnawali, with the permission of Bhagirath, Bhagwana and Pema Ram. After the decision in the Panchayat that the land would remain in the cultivatory possession of Bhagirath for two years, Lekh Ram handed over possession of the land to Bhagirath. In Samvat year 2029, Bhagirath cultivated crops of gram, Haldi etc., in it which was cut by him and his sons. On 26. 3. 1973 Bhagwana Ram and Penaa Ram accompanied by Ram Kunwar forcibly entered into the land with an intention to take away the crops and to occupy the land. Bhagirath and his sons ran away from the field out of fear of being beaten by the trespassers. As Bhagirath apprehended imminent danger of breach of the peace, he requested the Sub-Divisional Magistrate, Hanumangarh, to initiate proceedings against Bhagwan and Pema Ram under S. 145., old Cr.P.C. and to pass an order of interim attachment of the land in dispute. In support of his application, Bhagirath put in his own affidavit and the affidavit of Lekh Ram. The Sub-Divisional Magistrate, Hanuman garh, was satisfied from the material on the record that a dispute likely to cause a breach of the piece existed concerning the land under controversy. He, therefore, made an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in the dispute to attend his court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute and further calling upon them to put in such documents or to adduce by putting in affidavits the evidence of such persons as they relied upon in support of such claims. As the case was one of emergency, the learned Sub-Divisional Magistrate attached the land in dispute and appointed the Naib-Tehsildar, Suratgarh as a receiver to take the land into his possession and to make proper arrangements for its cultivation. 3. The parties appeared before the Sub-Divisional Magistrate and submitted written statements of their respective claims as respects the fact of actual possession of the land in dispute. They put in affidavits of their witness also along with certain documents. The Sub-Divisional Magistrate considered the entire evidence led by the parties in support of their respective claims and came to a conclusion that Pema Ram and Bhagwana were in possession of the land in dispute two months prior to the date of attachment, i. e. 9. 4. 1973. Aggrieved by this order Bhagirath filed a revision-petition in the court of the Sessions Judge, Sri Gangaugar who accepted the revision-petition and set aside the order of the Sub-Divisional Magistrate and declared the possession of Bhagirath over the land in dispute at the date of the preliminary order or within two months next before it, as stated above. Hence, Pema Ram and Bhagwana have come-up to this Court in revision. 4. I have carefully gone through the record and heard the arguments advanced by Mr. B. Advani for the petitioners, Mr. B. R. Arora for Bhagirath, non-petitioner No. 1, and Mr. M. C. Bhati for the state. From a bare perusal of the final order passed by the Sub-Divisional Magistrate, Hanumangarh, on 26. 2. 1974, it appears to me that the learned Sub-Divisional Magistrate had no power to decide as to whether any and which of the parties was in possession of the property in dispute two months prior to the date of passing of the preliminary order, j. e. 9. 4. 1973, Under the law, he was required to decide on inquiry and to give a finding as to whether any and which of the parties was in possession of the disputed property at the date of the preliminary order. It is no doubt true that if one of the parties had been forcibly and wrongfully dispossessed within two months of the date of the preliminary order, the Sub-Divisional Magistrate could treat such person as having been in possession at the date of the preliminary order under the second proviso to sub-section. (4). It is no doubt true that if one of the parties had been forcibly and wrongfully dispossessed within two months of the date of the preliminary order, the Sub-Divisional Magistrate could treat such person as having been in possession at the date of the preliminary order under the second proviso to sub-section. (4). Except as provided by the second proviso to sub-section (4) of S. 145, old Cr.P.C. the Sub-Divisional Magistrate was not empowered to give a finding on previous possession . The Sub-Divisional Magistrate passed the following final order in direct contravention of the provisions contained in S. 145 Cr P. C. " vr% mijksDr vk/kkj ij vk0 eqr0 pd 6 ds0,p0,u0i0 ua0 391247 fd0 ua0 4 ls 7 o 15] 16] 25 rFkk i0ua0 381247 fd0 ua0 9 ls 12 rFkk 19 ls 22 dqy 15 ch?kk ij dqdhZ 9&4&73 ls 2 ekg igys vizkFkhZ;ku isekjke o Hkxokuk jke dk dCtk dk'r ?kksf"kr fd;k tkrk gSA fjlhoj dks vkns'k gks fd og vk0 eqr0 vizkFkhZ;ku dks lEgyk nsos rFkk jde uhykeh 10 izfr'kr tks fd deh'ku fuf'pr fd;k x;k Fkk dkV dj vizkFkhZ;ku isek jke o Hkxokuk jke dks nh tkosA fely nk[ky nQ~rj gksA " 5. The Sub Divisional Magistrate, Hanumangarh, therefore, committed grave error of law when, upon inquiry, he declared the possession of Pema Ram and Bhagwana Ram over the land in dispute two months prior to the date of interim attachment, i. e. 9. 4, 1973 on which date also the preliminary order was passed. Ashe had not given any finding as to whether Pema Ram and Bhagwana Ram were the persons who were in possession of the land in dispute on the date of the preliminary order or within two months immediately preceding it, his final order was both illegal. In this view the referred the matter to above final order passed by him was clearly illegal and bad in law. It is surprising that this glaring defect in the final order escaped the notice of the Sessions Judge, Sri Ganganar. In this view the referred the matter to above final order passed by him was clearly illegal and bad in law. It is surprising that this glaring defect in the final order escaped the notice of the Sessions Judge, Sri Ganganar. In the absence of any final order by the Sub-Divisional Magistrate that a particular party was in possession of the land in dispute on the material date, i. e. the date of passing of the preliminary order or within two months immediately preceding it, the Sessions Judge ought to have remained the case to the Sub-Divisional Magistrate, Hanumangarh for fresh decision according to law. In spite of this illegality affecting the jurisdiction of the Magistrate, the Sessions Judge interfered in revision with the final order merely because he came to a different conclusion on the evidence. 6. Consequently, I accept the revision-petition, set aside the order of the Sessions Judge, Shri Ganganagar, dated 11.1.1975, and that of the Sub-Divisional Magistrate, Hanumangarh, dated 26. 2. 1974, and send the case back to the Sub-Divisional Magistrate, Hanumangarh, for fresh decision in accordance with law and in the light of the observations made above. If the possession of the land is not delivered to any party, the land shall remain under attachment till a fresh final order is passed by the Sub- Divisional Magistrate. *******