Banerji, J.

(1) This reference is by the District Magistrate of Gaya recommending the reversal of an order under Section 145, Criminal P. C., passed on 21-8-1952, by Mr. G. K. Prasad, Magistrate 1st Class, Gaya, declaring possession of the second party.

(2) One Ramnath Singh had four sons, Ugra Narayan, Muneshwar, Kapildeo and Baijnath. Ugra Narayan was living in village Majhaulia, Police Station Sherghatty, and died there. After his death, dispute sprang up between the four sons of Ugra Narayan, who are the second party, and the group representing the 12 annas share of the three brothers of Ugra Narayan. This group (the first party in the proceeding) alleged that the second party were the sons of Ugra Narayan by a kept woman and they were never in possession ol the lands in village Majhaulia under khatas Nos. 8, 10, 13, 15, 16, 17, 18 and 20. They claimed their exclusive possession over these lands. On the other hand, the case of the second party was that they were the legitimate sons of Ugra Narayan through his second wife. They claimed that their father had been in exclusive possession of all the disputed lands in village Majhaulia, and, after his death, they came into possession of the same and the first partys claim was a mere pretence.

(3) The learned Deputy Magistrate disposed of the proceeding under Section 145, Criminal P. C., in favour of the second party, holding that they were in exclusive possession of these lands.

(4) The learned District Magistrate has given Jour grounds for setting aside the order of Mr. G.K. Prasad. Out of these, grounds Nos. 2, 3 and 4 did not commend themselves even to the first party who have appeared in this Court through their learned Advocate. In ground No. 2, it is stated that the witnesses of the Second party admitted the possession of the first party over the lands in dispute. Mr. G.K. Prasad in his report has stated that it is just to the contrary and that actually some witnesses of the first party admitted possession of the second party. This is borne out by the record and the learned Advocate for the first party, therefore, does not attach any importance to this ground. He also does not rely upon ground No. 3 where the learned District Magistrate has said that the Magistrate trying the Section 145, Criminal Procedure Code proceeding was wrong in holding that the order of the Land Registration Deputy Collector was stilt sub judice and had not assumed the form of a decree as yet. Again, he dees not approve of the idea of the disputed lands being attached under Section 146, Sub-section (1), Criminal P. C., as suggested by the learned District Magistrate in ground No. 4.

(5) The point in controversy, therefore, now centres round ground No.

1. In this ground, the learned District Magistrate has stated that as the Second party have filed a partition suit in the Civil Court claiming a four annas interest in the disputed lands, the Court below had gone beyond its jurisdiction in declaring possession of the second party over the entire 16 annas, that is, over all the lands in dispute. This ground has been clarified further by Mr. Lalnarain Sinha appearing on behalf of the first party. He contends that the possession of a coparcener over a portion of the joint family property is actually the possession of the whole family and that an adverse order under Section 145, Criminal P. C., if passed, would convert the coparceners possession, which is on behalf of the family, into hostile possession adverse to it, which position cannot be sanctioned by law. It is a fact that the second party has filed a partition suit claiming four anna interest in all the lands of different villages left by Ramnath Singh on the footing that they are the legitimate sons of Ugra Narayan who was joint with his other three brothers. In support of his contention, Mr. Sinha has cited two decisions, namely, -- Kinu Mondal v. Haji Baul Mondal, 23 Cal WN 1051 (A) and -- Radha Raman v. Baliram Ram, 32 Cal 249 (B). The facts of both the two cases do not apply to the one under consideration. In the first case cited, it was held that, where it was found that the second party was in possession of the disputed land on behalf of the first party as also on behalf of himself, both parties being members of the same family, and the Magistrate declared the second party to be in possession of the disputed land, the order was without jurisdiction. The Magistrate in the case before me has net arrived at the finding that the second party were in possession on behalf of themselves as well as of the first party. The first party, as already stated, claimed exclusive possession over the disputed land and so did the Second party. It was not their case that any of them were holding jointly, being members of, the same family; rather, the first party asserted that the second party, being the illegitimate sons of Ugra Nara-yan, were never in possession of the disputed lands and were net in a position even to put up a claim for possession. In the second case cited by Mr. Sinha, their Lordships were not certain whether possession was claimed as managers or as proprietors. They stated: "There is no allegation of ouster of possession apart from the question of management." Later, they again observed as follows:

"Thus it appears that the claim, to exclusive possession in this case is quite illusory and meaningless unless it refers to the management only which is a question outside the purview of Section 145, Criminal Procedure Code."

(6) There is always a difference between one holding an interest in land and one in actual possession of the same. It is true that in law a coparceners possession is possession for himself as well as for the other coparceners, but in a proceeding under Section 145, Criminal P. C., he is entitled to sustain a plea that he alone is in exclusive possession for the time being. This does not and cannot, to my mind, amount to legal ouster of the other coparceners. In the present case, the second party have brought the partition suit claiming a four anna interest in all the coparcenary properties spread over several villages and) when an adjudication is made by the Civil Court, the first party will, certainly, be entitled to 12 annas share and possession over the disputed lands. But there is nothing to prevent the second party from contending that at present they, alone, are in possession. I do not think that the facts presented in this particular case are outside the scope of a proceeding under Section 145, Criminal P. C. This view has been illustrated in -- Easanta Kumari Dasi v. Mahesh Chandra, 40 Cal 9_82 (C) where it has been laid down that a Magistrate has jurisdiction under Section 145, Criminal P. C., in the case of ijmali land, where each party claims to be in exclusive possession of specific portions of the same. Section 145, Criminal P. C., does not apply only in those cases where the parties are found to be not constructively, but actually in joint possession. The argument of the learned Advocate for the first party contemplates of a position, where a Magistrate has found the parties to be in actual joint possession, which is not the case here. It may be, and, probably, it is not disputed, that as coparceners the first party are in constructive possession of the lands in dispute. But that is quite different from being in actual possession. The other case is reported in -- Nand Keshwar Prasad v. Sita Saran1, AIR 1932 Pat 366 (D). In this case, one set of persons claimed exclusive possession over the major portion of the land, while another set of persons claimed to be in joint possession along with them of the entire land. Their Lordships held, that, when one party claimed definite possession of certain land to the definite exclusion of the other, Section 145, Criminal P. C. was applicable.I am unable, accordingly, to accept the recommendation of the learned District Magistrate. The reference is discharged.