In matters of joint family property, no member can claim actual and exclusive possession unless there is a partition in the family. Proceedings under S. 145 Cr. P. C. can only be initiated if a dispute likely to cause a breach of peace exists concerning land or water, and the court has to decide the question of actual possession.

( 1 ) CRIMINAL Revision Petition no. 337 of 1967 is directed against an order of the learned 6th City Magistrate, Hyderabad indicating proceedings under S. 145, Cr. P. C. in M. C. 8 of 1967 on his file.

( 2 ) IT appears that a petition was filed by one K. Narasimha Reddy and K. Krishna Reddy against K. Janardhan Reddy and K. Pulla Reddy, alleging that the parties were members of a joint Hindu family. No partition of joint family property had taken place till the time this petition was filed, and it was also stated that K. Janardhan Reddy and K. Pulla Reddy, and other members of the family were living in the house from the time the construction was started. Some other facts were also mentioned, but I am not concerned with those facts, because they are not necessary for a decision of this case. But, it was mentioned before the Magistrates Court that K. Janardhan Reddy and K. Pulla Reddy, in collusion with one Sitarama Raju. who is a tenant, had planned to dispossess the petitioners from the house, a portion of which was in his possession, and it was requested that in view of the likelihood under Section 145 Cr. P. C. may be started.

( 3 ) IT appears that the learned Magistrate was satisfied only on the basis of this petition that there was a likelihood of the breach of peace and, therefore, he initiated the proceedings. This petition is filed on behalf of K. Janardhan Reddy and K. Pulla Reddy, challenging the jurisdiction of the Magistrate to initiate the proceedings under S. 145 Cr. P. C.

( 4 ) THE learned counsel for the petitioners has contended that it is a joint family property, and as such, the Magistrate should not have started any proceedings, as he does not get any jurisdiction to do so. I have set out the salient features of the petition earlier in the course of this order from which, it is quite clear, that the house about which it is alleged that there was a likelihood of the breach of peace, is a joint family property, and it also is a fact that no division of the joint family property has taken place so far. In this situation can it be said that K. Narasimha Reddy and K. Krishna Reddy were in actual and exclusive possession of the portion of the house in dispute?

( 5 ) THE learned counsel for the respondents has urged before me that what the court has to see is whether a party is in actual possession of the property in dispute, and if it is satisfied on that account, the proceedings cannot be said to be irregular.

( 6 ) IT is settled law that proceedings, under S. 145 Cr. P. C. can be started only on the ground that a dispute likely to cause a breach of peace exists concerning land or water, and the court has to decide the question of actual possession. If a member of the joint family is in possession of a part of the property, can it be said that he is solely in actual possession? Unless there is a partition in the family any member who is in actual possession of any part of the joint family property, can only be in possession on behalf of other family members. In matters of joint family property no member of the joint family property exclusively for himself, because, inherently, every member of the joint family has a right in the property, though some portion may be in possession of one of the members of the joint family.

( 7 ) A number of affidavits have been filed on behalf of the petitioner herein, and counter-affidavits have also been filed, but, I am disinclined to take those affidavits, and counter-affidavits into account in disposing of this petition. I am restricting myself only to the averments made in the original petition given by the respondents herein, and from which, I am satisfied that the property in dispute, is a joint family property and no one member of the joint family can claim actual and exclusive possession. As such, I think the learned Magistrate was not competent to initiate the proceedings under S. 145 Cr. P. C. and, therefore I direct that these proceedings will be dropp