JUDGMENT Nagendra Prasad Singh, J. The petitioners in this revision application were members of the first party to a proceeding under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code'), which has been decided in favour of the members of the Second Party-opposite party. 2. It appears that the learned Sub-divisional Magistrate Khagaria, initiated the aforesaid proceeding under section 145 of the Code by his order, dated the 24th November, 1967 and attached the subject matter of dispute. The proceeding related to 20 bighas 1 katha and 9 dhurs of land situate in village Agrahan in the district of Monghyr, which gave rise to Case No. 457 (M) of 1967 and was transferred to another Magistrate for disposal. Both p8rties filed their written statements, documents and affidavits. The hearing of the proceeding was being adjourned from time to time and ultimately on the 10th October, 1969 a petition was filed on behalf of the petitioners stating therein that one Bachchu Lal alias Brijnandan Prasad should be made a party to the said proceeding as had been ordered on the 21 st December, 1967. The learned Magistrate heard the parties, and, after a perusal of the records, observed that the said Brijnandan Prasad alias Bachchu Lal was a necessary party. He also observed that, in the order, dated the 24th November, 1967, while drawing up the proceeding under section 145 of the Code, the then Magistrate had not mentioned that he was satisfied that there was a likelihood of a breach of the peace for possession of the disputed lands, which was a vital defect in the proceeding likely to vitiate the final order to be passed therein. Towards the concluding portion of the order, he said as follows:- "This 145 Cr. P.C. proceeding was started on hearing in 107 Cr. P.C. proceeding between the parties and there was a police report in that case bearing no. 491M/1966. I am, therefore, satisfied that there is a likelihood of breach of peace for the possession of plot 216, 216/1, 216/4 of khata 1 and 294/2, 294/4 and 329/2 of khata 136 of village Agrahan with area as already mentioned in pervious proceeding. I, therefore, order that a fresh proceeding u/s 145 Cr. P. C. be drawn up including name of Brijnandan Pd. alias Bachchu Lal s/o Devan Lal of Neknam tola P. S. Barahra Dist. I, therefore, order that a fresh proceeding u/s 145 Cr. P. C. be drawn up including name of Brijnandan Pd. alias Bachchu Lal s/o Devan Lal of Neknam tola P. S. Barahra Dist. Sahabad at present mouza Agrahan P. S. Chautham among second party. The present proceeding is dropped. A separate number be given to the present proceeding. As the matter appears emergent the land is attached according to provision to section 145 (iv) Cr. P. C. Put up on 4. 11. 69, with S. R. of notice of Brijnandan Prasad, Fresh S. R. of spot will not be required." 3. After the aforesaid order, the case was numbered as 359M of 1969. In the aforesaid order, dated the 10th October, 1969, there was no direction to the parties to file any fresh written statement or affidavit. Ultimately by the impugned order, the learned Magistrate declared the members of the second party-opposite party to be in possession of the lands in dispute. It is the admitted case of the parties that the written statements, affidavits and documents filed in pursuance of the order dated the 24th November, 1967 were relied upon by the parties during the hearing of the proceeding in question. 4. Learned counsel for the petitioners has submitted that the order in question declaring the members of the second party to be in possession of the lands in dispute on the date of the proceeding is vitiated in as much as the date of the proceeding will be the 10th October, 1969, when a fresh proceeding was initiated, on which date the lands in dispute were under attachment in the earlier proceeding bearing Case No. 457 (M) of 1967, and as such, the members of the second party could not be deemed to be in actual physical possession of the lands in question on that date. Learned counsel also submitted that the learned Magistrate, having drawn up a fresh proceeding on the 10th October, 1969, could not have based his findings on the written statements, documents and affidavits filed in the proceeding started earlier, which was dead and gone for ail practical purposes. 5. Learned counsel also submitted that the learned Magistrate, having drawn up a fresh proceeding on the 10th October, 1969, could not have based his findings on the written statements, documents and affidavits filed in the proceeding started earlier, which was dead and gone for ail practical purposes. 5. Section 145 of the Code vests power in the Magistrate concerned to find out as to which of the contesting parties was in possession of the subject of dispute on the date of the order, meaning thereby the date of the order under sub-section (1) of section 145 initiating the proceeding. According to a Bench decision of this Court in Lakshmi Narain Singh v. Jugeshwar fha1 the relevant date on which the parties are held to be in possession in a proceeding under section 145 is the date when the actual proceeding under section 145 is started. In the instant case, if the date of the proceeding in question is held to be the 10th October, 1969, when the learned Magistrate passed the order saying that the earlier proceeding was being dropped and a fresh proceeding under section 145 be drawn up, then there might be substance in the contention of the learned counsel for the petitioners, because, in that event, there was no question of any of the parties being in actual physical possession of the lands in question. The lands in question were under attachment since the order passed on the 24th November, 1967, and they continued to be so till they were again attached on the 10th October, 1969 in the so-called fresh proceeding. But, I shall immediately indicate that, although the learned Magistrate had said that he was drawing up a fresh proceeding after dropping the old proceeding, in substance, he had amended the proceeding which had been initiated on the 24th November, 1967. A proceeding under section 145 of the Code can be dropped in exercise of the powers under sub-section (5) of section 145 of the Code. From a bare reference to the said sub-section it is obvious that a Magistrate can cancel a preliminary order passed under sub-section (1) of section 145 only if he was satisfied that no such dispute as aforesaid exists or had existed. Only then he can cancel the preliminary order. From a bare reference to the said sub-section it is obvious that a Magistrate can cancel a preliminary order passed under sub-section (1) of section 145 only if he was satisfied that no such dispute as aforesaid exists or had existed. Only then he can cancel the preliminary order. In the instant case, by order, dated the 10th October, 1969 itself, it appears that the Magistrate was satisfied about the existence of an apprehension of a breach of the peace for possession over the lands in question. As such, there was no question of dropping the proceeding which had been initiated on the 24th November, 1967. From a reading of the whole order, dated the 10th October, 1969, it appears that the learned Magistrate, during the course of the proceeding, discovered that the Magistrate who had initiated the proceeding on the 24th November, 1967 had not passed the order in conformity with the requirements of Sub-section (1) of section 145, that is, by stating that he was satisfied about the existence of an apprehension of a breach of the peace regarding possession over lands. The learned Magistrate, by the said order, dated the 10th October, 1969, purported to rectify the said mistake by stating the same in his order. But from that it will not be deemed that he had drawn up a fresh proceeding on that date. In my opinion, when the learned Magistrate said that he was drawing up a fresh proceeding and dropping the old proceeding, he did not appreciate the import thereof in the eye of law. There are intrinsic circumstances to show that the learned Magistrate, in fact, never purported to draw up a fresh proceeding, otherwise, by the impugned order, he should have directed the parties to file written statements, documents and affidavits in support of their respective claims by a date fixed, as required by sub-section (1) of section 145. The learned Magistrate also did not issue notices to the parties concerned; on the contrary, he observed that fresh service report on the spot would not be required. He simply issued notice to the aforesaid Brijnandan Prasad, who was added as a party to the proceeding. Learned counsel for the petitioners has submitted that the learned Magistrate, later, by order, dated the 19th November, 1969, directed the parties to file written statements etc by the 13th December, 1969. He simply issued notice to the aforesaid Brijnandan Prasad, who was added as a party to the proceeding. Learned counsel for the petitioners has submitted that the learned Magistrate, later, by order, dated the 19th November, 1969, directed the parties to file written statements etc by the 13th December, 1969. I have looked into the different orders passed in the said proceeding. The learned Magistrate never insisted at any stage on filing fresh written statements, documents and affidavits. I have already pointed out that the parties have claimed possession of the lands in dispute on the basis of the affidavit, written statements and documents filed in the earlier proceeding. In that view of the matter, I am of opinion that the order, dated the 10th October, 1969 is an order amending the proceeding which had been initiated on the 24th November, 1967, and when the learned Magistrate, while deciding the proceeding, observed that the members of the second 'party were in possession of the lands in dispute on the date of the proceeding, he meant that they were in possession on the 24th November, 1967. 6. A similar question was raised before a Bench of this Court in Rajendra Prasad Singh V. Dr. A. K. Ghosh2 as to whether a new proceeding would be deemed to have commenced under section 145 of the Code on the date a necessary party to the proceeding was added. This Court repelled the said argument holding that it amounted to amendment of the old proceeding. As I have already held that the order dated the 10th October, 1969 does not amount to drawing lip a fresh proceeding, there is no question of the impugned order being vitiated because it is based on written statements, affidavits and documents filed in the proceeding which had been drawn up on the 24th November, 1967, Apart from that, the petitioners cannot challenge the legality of the order on this ground in view of the fact that they themselves participated in the said proceeding without objecting to the procedure being adopted. As such, on principles of estoppel, they can not be allowed to raise any such point in the Court of revision. This aspect of the matter has been considered in several Bench decisions of this Court and a reference may be made to the cases of Shibnarain Das V. Satyadeo Prasad3 and Mt. Bimla Devi V. Sobhnath Mahamarik4. As such, on principles of estoppel, they can not be allowed to raise any such point in the Court of revision. This aspect of the matter has been considered in several Bench decisions of this Court and a reference may be made to the cases of Shibnarain Das V. Satyadeo Prasad3 and Mt. Bimla Devi V. Sobhnath Mahamarik4. I have also pointed out that the petitioners, in spite of the order, dated the 19th November, 1969, did not file any fresh written statement and filed only a few affidavits in addition to the affidavits which had already been filed on their behalf which were relied upon at the time of the final hearing of the proceeding. 7. Learned counsel for the petitioners also submitted that a document of delivery of possession relied upon on behalf of the petitioners was not properly considered by the learned Magistrate. This document is of the year 1937 and obviously not much importance can be attached to the same. The learned Magistrate has given reasons for accepting the claim of the opposite party. 8. Learned counsel further submitted that the learned Magistrate had relied on recitals as to....... documents filed on behalf of the members of the second party which were not inter parties, but related to strangers. No doubt, the learned Magistrate should have ignored such documents as being irrelevant, but I have perused the order of the learned Magistrate and I am of the opinion that, even if those documents are left out of consideration, the impugned order passed by the learned Magistrate can be sustained, because he has relied on affidavits and several other documents and it is difficult for this Court, while exercising the power of revision to interfere with the said finding. It is well known that a proceeding under section 145 of the Code is a summary proceeding where the primary object is to decide the claim of possession between the rival claimants so far as the Criminal Court is concerned. Any finding in a proceeding under section 145 of the Code is subject to the final adjudication by the Civil Court. 9. In my opinion, there is no merit in this application. It is, accordingly, dismissed. Shambhu Prasad Singh, J. I agree. Application dismissed.