G. B. PATNAIK. J. ( 1 ) MEMBERS of the second party in a proceeding under section 145 of the Code of Criminal Procedure, are the petitioners challenging the initiation of a proceeding under section 145 (1) of the Code as well al restraining both parties from entering upon the disputed land. ( 2 ) THE members of the first party filed an application before the learned Magistrate for initiating a proceeding under section 145 of the Code of Criminal Procedure and for attaching the land in question under section 146 (1) of the Code and to appoint a receiver, on the allegation that though the members of the first party have been in cultivating possession of the land and have raised the paddy crops and are utilising the usufructs in the Sevapuja of the deities, yet the second party members are creating disturbance in the possession of the first party. On receiving the said application, the learned Magistrate directed the Officer in-charge, Kujang Police Station, to submit a report and on receipt of the said report, as the learned Magistrate was of the opinion that a dispute likely to cause breach or peace between the parties concerning possession of the land in question has arisen and there is apprehension of breach of peace, he initiated a proceeding under sub-section (I) of section 145 of the Code and by the same order, the learned Magistrate also restrained both parties from entering upon the suit land. ( 3 ) THE learned counsel for the petitioners contends that on the assertion made in the application as the second Tparty members as wed as the first party members claim to be in possession as ccmarfatdars of the deity, the proceeding under section 145 is thoroughly misconceived and, therefore the pre-condition for initiation of a proceeding under section 145 (1), Code of Criminal Procedure, being absent, the impugned order is nonest. In support of this contention, the learned counsel places reliance on the decision of this Court in the case of Bishnu Charan Naik v. Harihar Sahu and others1. It has been held in the said case that a proceeding under section 145, Code of Criminal Procedure, could not be initiated in a case where the property is joint family property and the parties are in joint possession. It has been held in the said case that a proceeding under section 145, Code of Criminal Procedure, could not be initiated in a case where the property is joint family property and the parties are in joint possession. There is no assertion in the application filed by the first party members that the members of the first party as well as the members of the second party are in joint possession of the disputed land. On the other hand, the position asserted is that it is only the first party members who are in possession of the land in question and the second party members are trying to disturb the same. In the case of Kalakutu Chandan v. Markanda Gaudo and others2. R. N. Misra, J. (as he then was) while considering a similar matter came to hold that even though there may not have been any partition, if a dispute arises affecting the breach of the peace and any party is found to be in exclusive possession of joint family property, pending partition such exclusive possession even among co-sharers can be up held. The learned Judge declined to interfere with the initiation of a proceeding under section 145 of the Code of Criminal Procedure in the said case. In my view, the aforesaid decision in Kalakutu Chandans case, referred to supra, would apply in full force to the facts and circumstances of the present case and accordingly, it cannot be said at this stage that initiation of a proceeding under section 145, Code of Criminal Procedure, is bad in law. I would, therefore, reject the submission of the learned counsel for the petitioners that the initiation of the proceeding in the circumstances of the case is unwarranted. ( 4 ) THE learned counsel for the petitioner then urges that the learned Magistrate was in error in restraining both parties from entering upon the land as no part of section 145 authorises the Magistrate to pass a restraint order. It is only under section 146 of the Code a Magistrate can pass appropriate order to attach the subject of dispute if he is unable to satisfy himself as to which of the parties was in possession of the subject-matter of the dispute. Section 146 itself stipulates that an order can be passed only at It time after making the order under sub-section (1) of section 145. Section 146 itself stipulates that an order can be passed only at It time after making the order under sub-section (1) of section 145. The learned counsel, therefore contends that an order under section 146 (1) cannot be passed simultaneously with the passing of an order under section 145 (1) and in support of the said contention, reliance has been placed on the decision of this Court in the case of B. Dasso Patro alias B. Dasarathi Patro and-two others etc. v. B. Tariniga Patro etc3. In that case, it has been held by this Court that while drawing up the proceedings under section 145 (1) of the Code, if a Masistrate simultaneously passes an order attaching the land and appointing the Revenue Inspector as the receiver without giving any reasons, then ex facie it would show that the learned Magistrate has not applied his mind properly and judicially as contemplated in section 146 (1) of the Code. Applying the tests laid down in the aforesaid case to the impugned order, I am satisfied that the Magistrate has not applied his mind to the provisions of section 146 of the Code of Criminal Procedure and, therefore, it cannot be said that the Magistrate passed the impugned order restraining both parties in exercise of his powers under section 146 of the Code. In this view of the matter, the second part of the order, dated 23. 7. 1984 restraining the parties from entering upon the land cannot be sustained and is accordingly quashed. I would, however, observe that it is open to the learned Magistrate to take such steps as he thinks fit in accordance with law bearing in mind the provisions contained in section 146 of the Code. ( 5 ) IN the result, therefore, the initiation of a proceeding under section 145 of the Code is upheld and the proceeding must now continue till final order under sub-section (4) of section 145 of the Code of Criminal Procedure is passed. The second part of the order restraining members of both parties from entering upon the disputed land is set aside. This criminal revision is accordingly disposed of. .