ORDER 1. This revision petition under section 397/401 of the Code of Criminal Procedure 1973 preferred by the petitioner is directed against an order dated 1st April, 2011 passed in Criminal Revision No.45/11 by the Third Additional Sessions Judge, Bhind (M.P.), setting aside thereby an order dated 28th February 2011 in Criminal Case No.113/09 x 145 CrPC passed by the Sub-Divisional Magistrate Bhind and remanding the case to him for passing an order afresh after proper evaluation of the evidence and giving an opportunity of hearing to both the parties. The trial Court by the order dated 28th February 2011 held the petitioner/party No.1 to be in possession over the disputed land and it was directed that he be not dispossessed without following due process of law. 2. The facts, in brief just for the decision of this revision petition is that the petitioner Ram Naresh Singh purchased a plot No.46-A admeasuring 30 ft. x 30 ft., total in area 900 sq.ft. comprised in Survey No.751, 752, 88, 728/1, 729, situated at Sita Nagar Colony, 'B' Block, Bharoli Road by a registered sale-deed dated 21st October, 2002 from one Smt. Chhoti Bitiya and since then he is in possession over the plot. It is stated that when he started construction on the plot in question, respondent Shyam Singh raised an objection and interfered into his possession. The matter was reported to the police and the petition under section 145 of CrPC was filed before the Court of SDM Bhind. The respondent claimed his title over the land in dispute from the time of his ancestors. It was pleaded that he was having the possession on the said land. Both the parties filed the certified copies of the documents showing their ownership over the disputed land and witnesses on both side were examined before the trial Court. From the evidence it had come on record that there was a dispute about identification of the land. Hence, the trial Court directed measurement of the disputed land by the help of Superintendent of Land Record, Bhind. The respondent objected to that report of measurement. The learned trial Court after recording the evidence and hearing both the parties found that the petitioner was in possession over the land prior to two months and while holding so, the impugned order was passed. The respondent objected to that report of measurement. The learned trial Court after recording the evidence and hearing both the parties found that the petitioner was in possession over the land prior to two months and while holding so, the impugned order was passed. On revision against the same order by the respondent Shyam Singh, the revisional Court concluded that the trial Court has not properly appreciated the evidence of both the parties and therefore the case was remanded back for fresh consideration by the trial Court. Hence, the revision before this Court. 3. The contention of the learned counsel for the petitioner is that the order passed by the revisional Court is in a mechanical manner without taking into consideration the provisions of section 145 of CrPC. It is contended that from the material on record it is apparent that before sale, the disputed land was in possession of the Society and after sale of the property, the ownership as well the possession was transferred to the purchaser. It is submitted that the respondent taking the advantage of neighbourhood is making obstruction in construction over the plot owned and trying to dispossess the petitioner. Therefore, the order passed by the revisional Court is illegal and without application of mind and hence deserves to be set aside. Accordingly, it is prayed that by allowing the revision, the order passed by the revisional Court be set aside and the order passed by the learned SDM Court be restored. 4. Learned counsel for the respondent on the other hand, supported the impugned order and prayed for dismissal of the revision. 5. Heard the learned counsel for the parties and also perused the records of the Courts below and the law applicable to the case. 6. The main object of section 145 of CrPC is to decide whose actual feet is over the land in dispute meaning thereby actual physical possession and not legal possession supported by title. Possession means lawful possession and not possession taken by force in defiance of law, nor that of a trespasser and wrongdoer. The emphasis in section 145 is on aspect of likelihood of breach of peace arising from dispute regarding actual possession of the subject-matter as at time of presentation of report by the police officer or in any other information based on which he proceeds and' not on right of possession. The emphasis in section 145 is on aspect of likelihood of breach of peace arising from dispute regarding actual possession of the subject-matter as at time of presentation of report by the police officer or in any other information based on which he proceeds and' not on right of possession. Thus, the object of this section is merely to maintain law and order and to prevent a breach of peace by maintaining one or other of the 'parties in possession, which the Court finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil Court. At this juncture it would be profitable to reproduce sections 145 and 148 of CrPC : "S. 145. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). 5. Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. 6. (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). 7. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). 7. When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. 8. If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit. 9. The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. 10. Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. S.148. (1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District Magistrate or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. (2) The report of the person so deputed may be read as evidence in the case. (3) When any costs have been incurred by any party to a proceeding under section 145, section 146 or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such costs may include any expenses' incurred in respect of witnesses and of pleaders' fees, which the Court may consider reasonable." 7. In the case of Shanti Kumar Panda v. Shakuntala Devi [ AIR 2004 SC 115 ], the Hon'ble apex Court held that: "..... Under sub-section (1) of section 145, a preliminary order taking cognizance of the dispute having been passed, the Magistrate would under sub-section (4) decide who was in possession of the disputed property on the date of the passing of the preliminary order. Consistently with such finding, a declaration by Magistrate in favour of such party would follow under sub-section (6) entitling it to retain possession over such property until evicted therefrom in due course of law and until such eviction all disturbances in its possession shall be forbidden. If any party is found to have been forcibly or wrongfully dispossessed within two months next before the date on which the report of a police officer or other information setting the Magistrate in motion was received by him or between such date and the date of order under sub-section (1), then the party dispossessed has to be fictionally treated as one in possession on the date of preliminary order under sub-section (1). The declaration of entitlement to possession under proviso to sub-section (4) read with sub-section (6) shall be made in favour of such party and the party found to have been so dispossessed forcibly and wrongfully may also be restored into possession. The declaration having been made, it would be for the unsuccessful party to approach the competent Court and secure such order as would enable his entering into possession and evicting the party successful in proceedings under section 145." 8. Hence, an order made under section 145, CrPC, deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. Further, the order is subject to decision of the civil Court. The unsuccessful party, therefore, must get relief only in the civil Court. He may move the civil Court with a properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached. In proceeding under section 145 CrPC, it is the actual possession which is material. The Magistrate should hold an inquiry into the actual possession over the property in dispute. He may file a suit for declaration and prove a better right to possession. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached. In proceeding under section 145 CrPC, it is the actual possession which is material. The Magistrate should hold an inquiry into the actual possession over the property in dispute. Regarding possession over the property in dispute the Magistrate is supposed to consider evidence adduced by the parties and without considering whether the possession over the property is right or wrong, the question of actual possession contemplated cannot be decided on the basis of assumptions and surmises. From perusal of the record of the case, it appears that while passing the impugned order dated 28th February 2011, the learned Sub-Divisional Magistrate has not properly considered the evidence produced from both the sides and concluded mainly on the basis of the report of demarcation of land by Superintendent of Settlement Bhind that the disputed land belongs to Ram Naresh Singh, petitioner. 9. In the case of Shamim Alam v. Sajjad Hussain and another [ (2005) 10 SCC 551 ], the Hon' ble apex Court held: "The learned Magistrate merely observed that on perusing the record, he was satisfied that possession of the property at the time of passing the preliminary order under section 145( 1) CrPC. Firstly there is no discussion about the details of the report submitted nor documents referred to in the said report. We are of the view that the Sub-Divisional Magistrate should have given specific reasons with reference to the material placed on record rather than making a bald observation that the respondent was in actual possession of the property." 10. In view of the above, this Court is of the view that the impugned order passed by the appellate Court does not suffer from any legal infirmity. Consequently, the revision petition fails and is hereby dismissed. The order dated 1st April 2010 is confirmed. The Sub-Divisional Magistrate is directed to decide the case afresh within a period of one month from the date of receipt of this order, after affording opportunity of hearing to both the sides and due appreciation of the evidence on record. 11. The record of the case be sent back immediately along with the copy of this order for necessary compliance.