K.C. Das Gupta, J.
1. A point of some nicety was raised by Mr. Dutta in this Rule which is directed against an order passed in a proceeding under Section 145, Criminal P. C. What happened in this case was that on the 8th of June, 1954, the learned Magistrate passed an order under Section 145 (1), Criminal P. C., in these words:
'As there seems to be real dispute over the properly in question between the contending parties and there is possibility of a breach of the peace, I draw up proceedings under Section 145, Criminal P.C., and call upon the parties to file written statements with regard to their respective possessions by 29-6-54.'
The contending parties referred to in this order were clearly on the one hand Radhasyam Chatterjee, the first party, and on the other Katyani Dasi, Balarain Chandra, Kanail Chandra, Gobinda Prasad Dutt, Doakari De and Kali Pada De. On the 29th July, 1954, the first party filed written statement. On an earlier date, 29th June, 1954, the 2nd party had filed an application in court praying for the addition of one Bangsidhar Chattaraj as a party. On 4-8-1954 an order was passed on this petition in these words:
'The prayer of the 2nd party that one Bangshidhar Chattaraj should be a party in this proceeding is duly considered. **** Prayer is allowed. Bangshidhar Chattaraj be made a pro forma 2nd party and the proceedings already drawn up should be amended accordingly and fresh notices be served on the parties including that Bangshidhar asking them to file w.s. if any.'
2. It appears that thereafter no written statement was filed by either of the parties and in fact Bangshidhar did neither file written statement nor appear before the Court through a lawyer nor examined himself or adduced evidence in these proceedings. After consideration of the evidence adduced by both parties, the learned Magistrate came to the conclusion that Bhabanl and on his death his widow Katyani and his sons had been in possession of the house till wrongfully dispossessed on the 22nd Baisakh (5th May, 1954) and this date being within two months next before the date of proceedings i.e., 8th June, 1954, on which the first order directing proceedings to be drawn up was passed, he held that under the 2nd proviso to Section 145 (4), Criminal P. C., the dispossessed party should be treated as if they had been in possession of the disputed house at such date. He passed order accordingly that the opposite parties Nos. 1 to 3, the widow and the minor sons of Bhabani be declared to be in possession of the disputed land and also of the pucca building standing on the land and be restored to possession of the house.
3. It is contended by Mr. Dutta that as there were in fact fresh proceedings actually drawn up on the basis of the order passed by the Magistrate on the 4th August, 1954, the date of 'such order' for the purpose of application of the proviso to Section 145 (4), Criminal P.C., should be this date viz., the 4th August, 1954, and consequently the fact that the opposite parties 1 to 3 had been dispossessed on the 5th May, 1954, didnot entitle the Magistrate to declare them to be in possession for the purpose of these proceedings.
4. If Bangshidhar who was added as a party was a party with an independent claim and if Bangshidhar had himself claimed to be in possession, there might have been some force in Mr. Dutt's contention. In the present case however it is clear that Bangshidhar has taken no part whatever and if he is really interested his battle is being fought by Radhasyam. There may indeed arise cases where when parties are added to such proceedings under Section 145, Criminal P.C., on a subsequent date, it might work injustice if the first date on which proceedings were drawn up as against some parties is taken to be the date for the purpose of the proviso. What the court is to decide is which of the parties was in possession on the date when he draws up the proceedings and it is for this purpose that in some special cases the law requires him to treat somebody who has ceased to be in possession on the date when the proceedings are drawn up as being in possession. As against a party who became a contending party within the meaning of Section 145 (1), Criminal P. C., on a subsequent date, the possession that has to be decided is with reference to such subsequent date and possession on a date more than two months before such subsequent date cannot permit the operation of the proviso. It will not be fair to apply this Rule however to cases where the person added is added for the purpose of completions only and the real contending forms (sic) are already on the record. In the present case the dispute as regards possession with reference to which the proceedings were drawn up referred really to the date 8th June, 1954, and the fact that Bangshidhar was added on a subsequent date did not alter this substantial position. In our opinion therefore the learned Magistrate was right in treating the date 8th June, 1954, as the date of the order within the meaning of the 2nd proviso to Section 145 (4) Criminal P.C.
5. It is further to be noticed that in the present case Bangshidhar has not obtained this Rule and Radhashyam against whom the proceedings were originally drawn up is the petitioner. The mere fact that as the learned Magistrate ordered amendment of the proceedings, fresh proceedings were actually drawn up, does not alter the situation.
6. The other contention raised by Mr. Dutta is that even in coming to the conclusion that Katyani and her sons were in possession till they were dispossessed on the 22nd Baisakh 1361, the learned Magistrate has failed to attach proper weight to the evidence given in the case. He has drawn our attention in this connection to the statement made by some of the witnesses of the opposite party indicating that the dispossession took place earlier than the 22nd Baisakh. At least one witness has given evidence that dispossession took place on the Akshoy Tritiya, the 22nd Baisakh. It was open to the' Magistrate to accept this definite statement in preference to the general statement made by either party. He has in fact accepted this statement. The fact that the judgment does not contain reference to the statements of the different witnesses, does not justify a conclusion that he did not take them into consideration. It will be proper in our opinion to proceed on the basis that the learned Magistrate applied his mind to all the statements before him and then decided to accept the evidence given by one witness of the oppositeparty that the dispossession by the 1st party Radhashyam took place on the 22nd Baisakh, 1261.
7. The Rule is accordingly discharged.
8. I agree.