1. This Rule was issued a the instance of the second party to a pro seeding under Section 145, Criminal Procedure Code. The point made on behalf of the first party is, that the Magistrate had no jurisdiction to make the order which he did because he was unable to find which party was in actual possession and that, in making his order, he should not have relied on the superiority of title of the second party. Now, there is no question, of coerce, that in a proceeding under Section 145 the Magistrate is not entitled to rely simply on the question of title. He can use evidence of title to supplement evidence of possession; and this is really all that the Magistrate has done in this case. What he has said is, that the evidence of possession is not quite satisfactory on either side. Then he finds that the second party has a better title than the first party and, finally, he finds that the probabilities are in favour of Mohin Babu, i.e., the first party, being; in possession of the disputed land and he gives his reasons for thinking that the probabilities are in favour of the first party. This being the state of facts, in my opinion, there has been no want of jurisdiction on the part of the Magistrate in making the order that he has done. I would, therefore, discharge the Rule.
2. I agree.