JUDGMENT

Macpherson, J. - The matter in dispute in this case is the right to collect a four-anna share of the rent of a property which is undivided, Each of the two contending parties asserts a proprietary title to the share in question, and claims to be in possession by collecting from the tenants the rent payable in respect of it. The proprietors or the persons in possession of the remaining twelve-anna share are not parties to the case. The Magistrate has found that the first party is in possession, and has made an order u/s 145 of the Criminal Procedure Code maintaining him in possession.

2. It is contended that this is not a dispute concerning tangible Immovable property, and that Section 145 does not apply to the case. Also that the Magistrate's decision rests really on his view of the rights of the parties.

3. It does not appear to be disputed that Har Bullabh Narain Singh is entitled to and in possession of an eight-anna share of the mouzahs in question, and assuming that the Thakura, the first party in the present case, are entitled to four annas of the remaining eight-annas under the decrees of 1869 and 1892, it is by no means clear how the case stands as regards the other four annas. The second party claims a four-anna share by purchase from Jhanki Prasad, who is said to be a brother-in-law of Lutchmi Prasad, in December 1894. Jhanki Prasad was a party to the suit of 1869, but not to the suit of 1892, and Lutchmi Prasad was a party to the suit of 1892, but not to the suit of 1869. Lutchmi Prasad appears originally to have claimed an eight-anna share by purchase from Lutchmi Narain many years ago, and Lutchmi Narain and his brother Kesat were the vendors of the Thakurs. It is very possible that the purchase of the second party from Jhanki Prasad in 1894 is set up to defeat the decree which the Thakurs obtained in 1892 against Lutchmi Prasad and Lutchmi Narain. But it is unnecessary to go into a history of the alleged rights of the parties, only some of whom are before us, as I am clearly of opinion that Section 145 of the Code of Criminal Procedure cannot apply to this case. This Court has held in Pramatha Bhoosun Deb Roy v. Durga Churn Bhattacharjec ILR Cal. 413, Sarbananda Basu Mozumdar v. Pran Sunker Roy Choiodry ILR Cal. 527 and Abhayessuri Debi v. Shidhessuri Debi ILR Cal. 513, that a dispute as to the right to collect rent is a dispute concerning tangible Immovable property within the meaning of Section 145, but in all those cases the contending parties claimed respectively to be in possession of the entire land which was the subject of dispute by collecting the entire rent payable therefor from the tenants who were in actual occupation. The land which was in dispute could be defined by boundaries; the dispute in effect was as to that land, but the parties claimed, to be in possession, not by actual occupation, but by collecting the rent from the occupiers. I know of no case in which it has been held that a right to collect a share of the rent of an undivided property is a dispute concerning tangible Immovable property, and it is clear, I think, that it cannot be held to be so.

4. To bring a case u/s 145, the property, which is the subject of dispute, must be capable of being accurately defined, the words are tangible Immovable property or the boundaries thereof," and the whole scope and object of the section point to the same conclusion. The Magistrate, without reference to the rights of the parties, is to determine which party is in actual possession of the subject-matter of dispute, that is to say, the tangible Immovable property, and he is to maintain in possession the party found to be in such possession and forbid all. disturbance of possession until he is evicted in due course of law.

5. The dispute in the present case cannot be said to be a dispute concerning land within the meaning of the section. Neither party claims to be in possession of the whole of the land in respect of which the rent, a share of whic