In a proceeding under Section 145 of the Code of Criminal Procedure, the Magistrate has to determine the fact of actual physical possession at the date of the order under Sub-section (1) of Section 145, Code of Criminal Procedure.

Das, J.

1. This is a reference made by the Sessions Judge of Bhagalpur in respect of an order passed by the learned Munsiff Magistrate of Banka in a proceeding under Sec.145 of the Code of Criminal Procedure. In the view which I have taken, it is unnecessary to state the facts. The facts are clearly stated in the letter of reference of the learned Sessions Judge. The two main grounds on which the learned Sessions Judge has made this reference are: (1) that the learned Munsiff Magistrate failed to appreciate the real question he had to determine in a proceeding under Sec.145, Code of Criminal procedure; and (2) that the proceeding was defective, inasmuch as it gave no details of the subject-matter of dispute. In my opinion, both these grounds are valid and vitiate the order passed by the learned Munsiff Magistrate.

2. On the question of possession, the learned Munsiff Magistrate expressed himself as follows:

"As regards possession, possession must be deemed to follow title. I have said that the title of the second party (second party here is a mistake for first party) over this land by virtue of the kebalas is not opposed by any counter title to the land because the kebalas (Exs. A-2 and A-3) do not relate to Plot No. 1902 in which the disputed land lies. The admission of the second party witnesses especially those who are heirs of the recorded tenants is a clear indicator of the fact that the lands have been long abandoned by the recorded tenants and the same have passed on to the tenure-holder Khagpat Rai. The possession, therefore, must be deemed to be with the first party."

It is clear to me that this is not the kind of determination which is required in a proceeding under Sec.145, Code of Criminal Procedure. Sub-section (4) of Sec.145, inter alia, states:

"The Magistrate shall then, without reference to the merits of the claims of any of such 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 respectively, etc., and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject."

What has to be determined in a proceeding under Sec.145, Code of Criminal Procedure, was laid down very clearly in a recent Pull Bench decision of this Court in S.M. YAQUB V/s. T.N. BASU, 27 Pat 1027, Sinha, J., (as he then was) formulated in that decision certain conclusions, & I invite particular attention of the learned Munsiff Magistrate to conclusion No. (1) which indicates what has to be determined in a proceeding under Sec.145, Code of Criminal Procedure.

The learned Munsiff Magistrate was in error in thinking that he could pass an order in a proceeding under Sec.145, Criminal P.C., on the footing that possession follows title, or that somebody must be deemed to be in possession. What he has to determine, in terms of Sub-section (4) of Sec.145, is the fact of actual physical possession at the date of the order under Sub-section (1) of Sec.145, Code of Criminal Procedure. It is, clear, therefore that the learned Munsiff Magistrate did not appreciate the real question that he had to determine in the proceeding.

3. I am also satisfied that the proceeding was materially defective. In his letter of reference, the learned Sessions Judge has referred to various defects. It was not made clear as to whether the dispute related to the lands of Plot No. 1902, or to the right to collect mahua flowers or fruits from some trees standing on the plot. It was not made clear whether the dispute related to the entire area of Plot No. 1902, or to a part of the area only. If the dispute related to the right to collect Mahua flowers or fruits, it was not made clear whether the dispute was about such right in respect of all the trees or some of the trees only of Plot No. 1902. The learned Munsiff Magistrate gave certain boundaries of the subject-matter of dispute. The lear