JUDGMENT : L. Rath, J. - The second party members 1 and 3 in a 145 Code of Criminal Procedure proceeding are in revision against an order of the Second Additional Sessions Judge, Berhampur reversing the order of the Executive Magistrate dropping the proceeding and declaring possession in favour of the opposite party No. 1. The proceeding was initiated on the basis of a petition u/s 144 Code of Criminal Procedure by the opposite party No. 1 against the Petitioner No. 1 who is stated to be his adoptive mother, and another. In the petition he claimed to be in cultivating possession of the lands of late Choudhury Nayak including the case lands as his adopted son. The present Petitioner No. 1 is the wife of late Choudhury Nayak. A petition was filed by the Petitioners before the Magistrate u/s 145(5) Code of Criminal Procedure to drop the proceeding on the basis that the deed of adoption only stipulated inheritance of the property by the opposite party No. 1 after the death of Petitioner No. 1 and that further due to the illegality of the said deed, it had been cancelled on 18-2-1982. The learned Magistrate on a consideration of the petition passed orders on 30-11-1982 dropping the proceeding being of the view that the disputed land was the joint family property and hence a proceeding u/s 145 Code of Criminal Procedure was not maintainable. In revision, the order was reversed by the Second Additional Sessions Judge being of the view that since it was the specific case of the opposite party No. 1 that he was in exclusive possession of the property and that the evidence on record otherwise also moved it, it was not open for the Magistrate to enter into discussion regarding title of the property and coming to such conclusion he declared possession ill favour of the opposite party No. 1. 2. Mr. S.D. Das, learned Counsel for the Petitioners has urged relying upon 60 (1995) CLT 558 Manika Sanu and Anr. v. Dandapani Sahu and Ors. that once the property is a joint family property as is evident from the claim made by the opposite party No. 1 himself, it must be held that the proceeding u/s 145 Code of Criminal Procedure was misconceived and that the learned Magistrate had rightly dropped the proceeding. v. Dandapani Sahu and Ors. that once the property is a joint family property as is evident from the claim made by the opposite party No. 1 himself, it must be held that the proceeding u/s 145 Code of Criminal Procedure was misconceived and that the learned Magistrate had rightly dropped the proceeding. As a proposition of law, the position is unexceptionable, and if the case of the opposite party No. 1 of his possessing the property as the adopted son would have been accepted by the Petitioners, there could be no escape from the conclusion that the proceeding did not lie But the case is different and the citation has no application since the Petitioners refuted the adoption firstly saying that the opposite party No. 1 was not to come into possession till the death of Petitioner No. 1 and secondly that the deed of adoption had been cancelled for whatever it is worth. Once such a stand is taken, it must be held that the joint possession of the parties is not admitted and that the claim of possession of the opposite party No. 1 is challenged as being a stranger to the land and in such background a Magistrate deciding 145 Code of Criminal Procedure proceeding 1985 (II) OLR would not lose jurisdiction but has to decide the question of possession as contemplated within the ambit of the section. To that extent no objection can be taken to the judgment of the learned Additional Sessions Judge. 3. However, it is found that the learned Magistrate in dropping the proceeding had not granted opportunity to the parties to adduce Evidence and even though preliminarily the parties were called upon to put in their respective evidence and documents, yet thereafter the proceeding was dropped only upon consideration of the petition under Sub-section (5) of Section 145 Code of Criminal Procedure I am satisfied that no proper opportunity has been afforded to the parties to prove their respective possessions and hence the order of the learned Additional Sessions Judge declaring possession in favour of the opposite party No. 1 on the basis of a mere affidavit filed by one person is not sustainable. 4. In the result, the revision is allowed. 4. In the result, the revision is allowed. The order of the second Additional Sessions Judge declaring possession in favour of the opposite party No. 1 is set aside and the case is remanded back to the learned Executive Magistrate for afresh decision after following the procedure. Revision allowed, Final Result : Allowed