JUDGMENT : Madan Mohan Prasad. J. This is an application under Article 227 of the Constitution of India for quashing a proceeding under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘Code’) in the following circumstances. The subject-matter of the dispute between the parties is said to be two parcels of land, bearing plot nos. 1682 and 1737, having a total area of 7 bighas 12 kathas and 14 dhurs. It appears that there was a Title (partition) suit no. 42 of 1959 between the parties which had been instituted by the first respondent as one of the plaintiffs and the petitioner was the first defendant. It is said that this suit was decreed ex-parte on the 13th January, 1966. There was an appeal against that, which was dismissed on the 19th June 1971. Thereafter, a second appeal was filed in this Court; being Second Appeal no. 525 of 1971, which is said to be still pending in this Court. 2. It appears next that, on the basis of a police report, dated the 16th March, 1971, a proceeding in respect of the aforesaid lands had been started under Section 144 of the Code. On the 12th April, 1971, however, the petitioner raised objection to the maintainability of the proceeding. It appears that there was a subsequent report by the police received on the 30th April, 1971, and on that very date, the learned magistrate converted the proceeding into one under Section 145 of the Code. It appears further that, on the 31st August, 1973, the objection raised by the petitioner that the matter had already been decided by the Civil Court and that the proceeding should, therefore, be stayed was heard. Again, there appears to have been a further hearing given to the parties in respect of their claims. Ultimately, the impugned ORDER :was passed on the 8th November, 1974, whereby the learned magistrate held that the proceeding under Section 145 of the Code should continue. The present application has been filed in this court as against the aforesaid ORDER :with the prayer stated above. 3. Ultimately, the impugned ORDER :was passed on the 8th November, 1974, whereby the learned magistrate held that the proceeding under Section 145 of the Code should continue. The present application has been filed in this court as against the aforesaid ORDER :with the prayer stated above. 3. Counsel for the petitioner has urged that, the dispute between the parties having been the subject-matter of the partition suit and the matter still being before the civil court in the proceeding for preparation of final decree, the ORDER :for continuing the proceeding under Section 145 of the Code is improper and ought to be quashed. 4. In support of the aforesaid argument, it has been urged that the learned magistrate has ORDER :ed for the continuance of the proceeding in view of the fact that one of the parties before him had made out a case of exclusive possession as against the decree of the Civil Court in the partition suit. It appears that the first party (respondent here) in his written statement had alleged that, subsequent to the decree in the partition suit, there had been a family arrangement amongst the parties as a result of which the first party is in exclusive possession of the lands aforesaid. It also appears that the petitioner had also made out a case in his written statement that plot no. 1682 was already the subject-matter of a previous partition of a certain area of which had been allotted to him and that the other plot, 1737, was his self-acquired property and, consequently, in his possession. True that the parties have made claims which are said to arise after the decree of the partition suit or inconsistent therewith. It has, however, been pointed out that be, that as it may, the matter is still pending before the Civil Court. In other words, the claims of the parties are still to be finally adjudicated upon by this court, and, even if the pendency of the second appeal be ignored, there is still the proceeding for the preparation of the final decree where equities pre-existing or arising after the preliminary decree may still be adjusted. In these circumstances, It is .said that no useful purpose. In these circumstances, It is .said that no useful purpose. would be served by continuing the proceeding under Section 145 of the Code which culminates in an ORDER :which is to have effect only so long as the matter is not finally decided by the Civil Court. Learned counsel has placed reliance on certain decisions of learned single Judge of this court in (1) Ramkishun Agarwalla V. State (1975 Bihar Bar, Council Journal 555) (2) Jatim Mian V. Raghunath Prasad (1973 Patna Law Journal Reports 69) and (3) Kamo Sharma V. Jagdambi Mahto (1968 Patna Law Journal Reports 427). In all these cases the learned Judges were considering the question as to whether a proceeding under Section 145 of the Code was proper where the dispute between the parties is already before the Civil Court. The answers were given in the negative. 5. It is well settled that a proceeding under Section 145 of the Code mainly intended to avoid a situation where there is a likelihood of a breach of the peace. It is with that end in view that a magistrate passes an ORDER :under Section 145(1) and in a summary way finds out as to who is in actual possession of the property which - is actually the cause of the dispute and ultimately passed the ORDER :declaring one of the parties to be in possession and the party so found in possession is to retain possession until he be evicted by law. Obviously, therefore, it is merely a stop-gap arrangement to allow one party to continue in possession as long as the Civil Court does not decide the matter, primarily with a view to avoid a breech of the peace. In such Circumstances, therefore, when the dispute is already before the Civil Court, the question arises whether a proceeding under Section 145 of the Code would be proper. 6. It is well settled by now that the jurisdiction of the magistrate is not affected by virtue of the fact that the matter is already before the civil court. Therefore, the mere pendency of a title suit, or a partition suit, respecting the property which is the root cause of the trouble between the parties cannot be said to take away the jurisdiction of the magistrate. Therefore, the mere pendency of a title suit, or a partition suit, respecting the property which is the root cause of the trouble between the parties cannot be said to take away the jurisdiction of the magistrate. If there be an imminence of a breach of the peace and if there be a bona fide dispute relating to possession, in law, it is still open to the magistrate to initiate or continue the proceeding under Section 145 of the Code. There may be circumstances however, and I need not go into them in the present case, when such a proceeding may be justified in spite of the pendency of a title suit. It will, however, depend on the facts of each case to whether or not a proceeding under Section 145 would be proper. No hard and fast rule can be laid down to determine as to in which circumstances such a proceeding would be proper or otherwise. 7. Coming to the facts of the present case, it is obvious that there is already a decree of the Civil Court confirmed by the first appellate court and pending adjudication in the second appeal before this Court. The partition suit had been decreed and the parties have been held entitled to shares. It is also said that there is a proceeding for preparation of the final decree going on. In these circumstances, even if there be a filmily arrangement, as alleged by the respondent, by which exclusive possession on certain lands has been given to any of them, the equities arising out of this transaction can still be considered and decided upon and adjusted in the proceeding aforesaid. So far as the claims of the parties inconsistent with the preliminary decree, a finding in respect of which is against such claims, are concerned, it can still be decided finally by this Court in the second appeal. The matter thus, in all its aspects, is before the Civil Court and, in such circumstances, there is no reason to think that any further good will result out of the proceeding initiated under Section 145 of the Code. 8. The matter thus, in all its aspects, is before the Civil Court and, in such circumstances, there is no reason to think that any further good will result out of the proceeding initiated under Section 145 of the Code. 8. It may, however, be urged, on the other hand, although there is no appearance for the other side in this case, that the matter being in the stage indicated above, there would be no suitable remedy fop avoiding the breach of the peace apprehended by the Magistrate. The argument can be repelled by saying that it would be open to the Magistrate to start a proceeding under Section 107 of the Code against one or the other or both the parties, which usually ends apprehension of a breach of the peace. 9. In the circumstances of this case, I would, accordingly, quash the ORDER :, dated the 8th November, 1974 (annexure 2') and the proceeding as a whole. The application is, accordingly allowed. MEDINI PRASAD SINGH, J. I agree Appeal allowed.