Misra, J.

1. The petitioner, Sudamawati Kuer, is the widow of one Rambharosa Singh of village More, within police station Mokama, in the district of Patna. Opposite party No. 1, Ramchandra Singh, is a minor son of Rambharosa Singh; Ramlakhan Singh, opposite party No. 2 is the father-in-law or Ramchandra Singh (opposite party No. 1) and Janardgn Singh, opposite party No. 3, is the brother of Ramlakhan Singh. Opposite party Nos. 4 and 5 are not interested. The application arises out of a proceeding under Section 145 of the Code of Criminal Procedure and relates to the properties left behind by Rambharosa Singh, who died sometime in 1949. On the 23rd of Juns, 1953, the petitioner, Sudama-wati, was appointed guardian of the minor. In 1956, Ramchandra Singh was married to the daughter of Ramlakhan Singh. On account of certain differences which cropped up between the petitioner and Ramlakhan Singh, she applied to the District Judge to be discharged from the guardianship of the minor. The tension between the parties gave rise to a dispute causing an apprehension of the breach ot peace. Accordingly, on the 21st February, 1958, a proceea-ing was started between them under Section 144 of the Code of Criminal Procedure for the prevention of the breach of peace. On the 22nd of April, 1958, an order was passed by the Magistrate that the minor was in possession ot his share of the property. On the 16th of June, 1958, there was another proceeding under Section 144 which was converted into a proceeding under Sectoin 145 of the Code on the 3rd of September, 1958. The application or the petitioner to the District Judge for being discharged from the guardianship was allowed on the 11th of June, 1959, and an order was passed by the learned District Judge on the 27th of November 1959, directing that Schedule 2 properties should be handed over to the maternal uncle of Ramchandra Singh, but no order was passed in respect of schedule 1 property. The proceeding under Section 145 of the Code of Criminal Procedure which relates to schedule 1 property could not be disposed of by the learned Magistrate because in his opinion it involved difficult questions of fact and, accordingly, on the 20th August, 1959, he referred the question regarding the claims of possession of the parties to the Civil Court under Section 145 (i) of the Code of Criminal Procedure for a finding as to which party was in actual possession. The Munsif of Barn, on a consideration of the evidence, returned a finding that the Mossamat, i.e. the petitioner, was in possession of the property as guardian of the minor. The petitioner is aggrieved by that order in so far as the learned Munsif has held her to be in possession only as the guardian of the minor and not in her own right in respect of halt the property to which she would be entitled as a Hindu widow, her husband having died in 1949 at a time when the Hindu Womens Right to Property Act, 1937 (Act 18 of 1937), governed the rights of Hindu women in joint family properties.

2. Learned Counsel for the petitioner has contended that the order of the learned Munsif is erroneous. He does not make any grievance that schedule 2 properties were the personal properties of Ramchandra Singh, step-son of tne petitioner, and she did not claim any interest in those properties. But so far as schedule 1 properties are concerned, which were left behind by her deceased Husband, she did have a right to be in possession as a Hindu woman stepping into the shoes of her husband after the latters death. The joint family consisted of Rambharosa Singh, her husband, and Ramchandra Singh, her step-son (Opposite Party No. 1), and the properties being ancestral Ramchandra Singh would acquire a right to those properties at the time of his birth. But this would not deprive the petitioner (the widow of Rambharosa Singh) to claim half interest in the joint family properties in the same way as her deceased husband would hold a right to these properties which would be a moiety share. She was, no doubt, appointed a guardian or the minor, but this was obviously confined to her acting as a guardian of the minors person and property to the extent to which the minor was entitled, which would be only to one-haif share; and merely because she wanted to act as tne guardian of the minor, it did not involve a turther consequence of deprivation, of the petitioners own right and quantum of interest in the joint family property. The learned Munsif came to a wrong conclusion in passing an order to the effect that the petitioner was no doubt, in possession but only as a guardian of the minor as if the entire property belonged to the minor and the petitioner had no independent right of her own to the properties. Mr. Prem Lal, appearing for the opposite party, has not controverted the position that the petitioner would be entitled to the share which would be the share of her deceased husband and, furthe,r that after the Hindu Succession Act of 1956, the petitioner might claim an indefeasible and absolute right to the properties which would be inherited by her from her husband. Learned Counsel, however, contended that the legal position adverted to herein can only be considered in a civil suit regularly constituted for that purpose, but so far as the present order passed by the Magistrate is concerned, it cannot be challenged as being incorrect in any way, It may be stated that it is a case where the actual possession of the petitioner or of opposite party No. 1 is not in controversy. Admittedly, they are both in possession being the widow and son, respectively, of Ramonarosa Singh. The learned Magistrate, in spite of this fact, passed the order in question, mainly, on the ground that in Guardianship Case No. 22 of 1953 the disputed properties were mentioned as properties of Rambharosa Singh and on. the 22nd June, 1959, the District Judge ordered the petitioner to hand over charge of those properties, although there was an objection from her side that she was entitled to half the properties as the widow of Rambharosa Singh. The property concerned in the present proceeding must be deemed to be the property of minor opposite party No. 1, From this, the inference follows, as a matter of course, that the petitioners right was not recognised in the guardianship proceeding by the learned District Judge of Patna. Mr. Indra Bhanu Singh has contended for the petitioner that the order sheet of the guardianship proceeding itself will show that the petitioner was to hand over charge to the newiy appointed guardian of opposite party No. 1 of only those properties which the minor inherited from other relations. Mr. K. S. Pandey, the then District Judge of Patna, overruled the contention on behalf of Ramchandra Singh that Sudama-wati, the petitioner, "had agreed to accept only maintenance and not to claim any share in the properties and, accordingly, she could not be held to have title to any portion of the property in her own right because she had agreed to accept only her maintenance. That matter, however, could not be decided by the District Judge in a summary proceeding like that under Guardianship and Wards Act. From this, the inference was clear that the Distiict Judge held the petitioner to be in possession of half the interest. Mr. Prem Lall for the opposite party No. 1 has contended that Mr. Shambhu Prasad Singh, who followed Mr. K. S. Pandey as the District Judge of Patna, clarified the order of Mr. Pandey more fully and directed the petitioner to hand over charge of the entire property of Rambharosa Singh to Ramlakhan Singh (opposite party No. 2), father-in-law ot Ramchandra Singh (opposite party No. 1). In view, however, of the order of Mr. K. S. Pandey, the order passed by Mr. Shambhu Prasad Singh in a proceeding under the Guardianship and Wards Act would be confined only to the interest of the minor in the joint family property and the learned District Judge had no jurisdiction to pass an order directing the petitioner to hand over charge of ail the properties to the newly appointed guardian of opposite party No. 1. In any. case, the position is admitted that she has not made over charge and as such she is in actual possession up to date. If opposite party No. 1 would, in law, be entitled to the properties left behind by his father ana his step-mother would have no right to it by virtue of an order passed by the District Judge in a proceeding under the Guardianship and Wards Act, it might be open to opposite party No. 1 to assert that right in a civil suit. The Magistrate, however, is concerned only with the question of actual possession in a proceeding under Section 145 of the Code of Criminal Procedure; and, admittedly, both the parties being in possession as members of the joint family, no partition having been effected so far, the order of the District Judge can be of no avail in determining as to which of the two contending parties would be held to be in exclusive possession of the entire joint family property.

3. This case was referred to a Division Bench by a learned single Judge on the ground that the findings of tne Civil Court under Section 146 of the Code of Criminal Procedure, on a reference by the Magistrate, could not be open to challenge by way of revision under Section 439 of tne Code or under Article 226 of the Constitution of India relating to the supervisory jurisdiction exercised by the High Court. The point has, however, been decided by the Full Bench of this Court in. Criminal Misc. No. 100 of 1962, (sic) 25-1-1963 reported in (: AIR 1963 Pat 243 [LQ/PatHC/1963/16] ) Raja Singh v. Mahendra Singh, and it has been laid down that although the finding of the Civil Court, on a reference by me Magistrate under Section 146, cannot be challenged by way of appeal, revision or review, the finding of that Court is still open to challenge if the finding has been acted upon by the Magistrate and an order passed in conformity with it, i.e. when the finding of the Civil Court has been integrated into the order of the Magistrate. In view of this decision, the learned Counsel for the opposite party has not contended that the order of the Civil Court cannot be revised in a suitable case by the High Court in exercise or its jurisdiction under Sections 435 and 439 of the Code of Criminal Procedure.

4. Learned Counsel for the opposite party has however, urged that the petitioner and opposite party No. 1, In any case, being members of a Hindu joint family, no order under Section 145 of the Code of Criminal Procedure can be passed by the Magistrate against either party. He has drawn our attention to a decision of this Court in Nandkeshwar Prasad v. Sita Sarari (: ILR Hat 87: AIR 1932 Pat 366) and the decisions in Basanta Kumari Dasi v. Mahesh Chandra Laha ILR Cal 982 Zafer Ansan v. Jugeshwar Bux Roy AIR 19 Pat 135 Kapildeo Narain Singh v. Ramdahin, Singh : AIR 1953 Pat 363 [LQ/PatHC/1953/77] ; Abhoypada Banerjee v. Dhanesh : AIR 1962 Pat 415 [LQ/PatHC/1962/31] ; Mahomed Beg v. Ehsan Beg AIR 1941 Oudh 515 and Nahar Singh v. The State : AIR 1951 Raj 156 [LQ/RajHC/1951/65] . All these rulings have been cited in support of the proposition that in a case like the present one, where the parties to the dispute are held to be in joint possession, no order under Section 14-5 can be passed in favour of any one party and against the other. Learned Counsel for the petitioner has drawn our attention to a decision of the Judicial Commissioner of Vindhya Pra-desh in Mathura Prasad Nand Ram v. State of Vindnya Pradesh AIR 1953 VP 14 for the contrary position. It must be said, however, that the aforesaid autnorities follow the trend that in the case of a dispute in regard to property, to which one party claims to be in exclusive possession and the other party claims to be in joint possession, a proceeding under Section 145 may start, but once the Magistrates comes to. a finding that both the parties are in a joint family, it is not open to him to pass any order against any one of the parties to the dispute. The decision of the Calcutta High Court in Basanta Kumari Dasis case ILR Cal 982 was one in which one of the parties to the dispute in the proceeding under Section 145 was found to be in actual possession although the parties were members of a joint family and each other had title to all the properties. Their Lordships held in that context that the actual possession being the determining factor in such a proceeding, the question of title being only incidental, the order passed by the Magistrate of Dacca was a valid order. In course of that order, however, their Lordships observed that in terms of Sub-section (6) of Section 145, as it then stood, it was impossible for a joint owner out of possession to be put in possession under a decree giving him a joint possession, as such a proceeding would, most probably, bring about the very breach of the peace which Section 145 was designed to prevent. In Nandkeshwar Prasad Sahis case (: ILR Pat 87: AIR 1932 Pat 366), a Division Bench of this Court has laid down as follows :

"Because one set of persons claim exclusive possession over the major portion of it while the ether set of persons claim to be in joint possession along with them of the entire land, the dispute may be difficult to decide (though it need not be if the Magistrate remembers what he has to decide and does not wander away into complicated or but dimly relevant questions of civil right), but it is in principle no less a question of disputed actual possession than if each party claimed exclusive possession of the entire area. In our judgment there is nothing in Section 145 or elsewhere in the Code of Criminal Procedure which renders it inapplicable to the case referred and similar cases".

5. The decision to the contrary in Sham Lal Mahton v. Rajendra Lal 1 PLT 594: AIR 1920 Pat 513 laying down that when there is a dispute regarding joint possesison of the family property, a proceeding under Section 145 of the Code of Criminal Procedure cannot be started, was overruled. In Zafar Ahsans case : AIR 1940 Pat 135 [LQ/PatHC/1939/196] , Rowland, J., following the case in (: ILR 12 Pat 87: AIR 1932 Pat 366) has held that a case in which one party claims exclusive possession but another party claims to be in joint possession with them is no less a question of disputed actual possession than if each party claimed exclusive possession of the entire area and, therefore, the question falls within the purview of Section 145. The contention ot Mr. Prem Lall therefore, that where persons jointly interests in a land have a dispute with regard to possession of (sic) property, there can be no proceeding under Secthm (sic) is not correct as laid down in the aforesaid decision.

6. The question, however, remains that it is not a case of one party claiming exclusive possession and the other party claiming joint possession, but both parties (sic) ing joint possession and there is still a dispute or if the second place, although a proceeding has been started in a case where one party claims exclusive possesses and the other party claims to be in joint possession and the Court comes to a finding in favour of the party that (sic) to be jointly in possession, what order is to be passed by the Court. The trend of the decisions seems to be that where it is a case of both parties found to to be in joint possession, then an order under Section 145 could not be appropriate but an order either under Section 146 (sic) Section 107 of the Code of Criminal Procedure. In my opinion, the decisions which lay down that in such a the proper order to be passed by the Magistrate was (sic) Section 146, as he is not able to come to a decisions (sic) to which party is in possession, are not appropriate. Section 146 as it stood prior to its amendment in 1958 ran as follows :

"146 (1): If the Magistrate decides that none of the parties was then in such possession, or is usable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach (sic) until a competent Court has determined the rights of the parties thereto, or the person entitled to possession there-of:

Provided that the District Magistrate or the magistrate who has attached the subject of dispute may withdrew use attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in (sic) to the subject of dispute.

(2) When the Magistrate attaches the suoject of Gjspate, he may, if he thinks fit, and if no receiver of Ike property, the subject of dispute, has been appointed by any Civil Court, appoint a receiver thereof, who, subject (sic) the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil (sic)

"Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently (sic) by the Civil Court, possession shall be made over to (sic) by the receiver appointed by the Magistrate, who shall thereupon be discharged".

This shows that the provisions of Secthm 145 (sic) down attachment of property by the Magistrate (sic) sion of a Civil Court would in terms arise in a case where the Magistrate is not in a position to decide which party (sic) in possession, but where the Magistrate tomes to a (sic) on evidence that both parties are in possession, then, (sic) my opinion, Section 146 of the Code would not be (sic) As was ruled by a Division Bench of the Bombat High Court in Venkatraman Rama Hedge v. Emperor AIR 1338 Bom 172, in such a case of dispute among members of a joint family, if the Magistrate comes to a conclusions that both parties are jointly in possession, the proper order to be passed would be one under Section 107, binding cross the disputants not to commit breach of the peace, and not to pass an order under Section 146. Their Lordships have laid down that even in such a case ft could not be said that the Magistrate had no jurisdiction to pass an order under Section 146, but it would not be an appra-prlate and reasonable order. In my opinion, However, in terms of Section 146, the Magistrate would have no jurisdiction to pass an order under Section 146, but one under Section 107, binding over all the parties on such terms as might appear to the Magistrate to be necessary, me position now is still more complicated because of the drastic amendment in the scope of Section 146 of the Code of Criminal Procedure according to which trie Magistrate has no jurisdiction to attach the property tor an indefinite period, until the parties would have their dispute adjudicated by a Civil Court of competent jurisdiction. A Magistrate is now required to refer the dispute to a Civil Court for a finding, which is expected to record a finding in favour of one party or the other, and the Magistrate has got to pass an order in terms of the conclusion of the Civil Court. The decisions, therefore, which held that in such a case an order attaching the property under Section 146 would be an appropriate order, no longer supply arty guidance to solve such a situation.

7. The next alternative, however, still remains for consideration as to whether in such a case when the Civil Court comes to a conclusion that both parties are jointly in possession, and such a finding can be returned to a Magistrate, whether the Magistrate should drop the proceeding, as was laid down by the Division Bench of the Rajasthan High Court in Nahar Singhs case : AIR 1951 Raj 156 [LQ/RajHC/1951/65] and by a single Judge of this Court in Abhoypada Banerjees case : AIR 1962 Pat 415 [LQ/PatHC/1962/31] . It is, no doubt, true that in view of such a finding by the Civil Court that one of the two parties which claimed exclusive possession was actually in possession, there will be no difficulty in passing such an order in favour of the party claiming exclusive possession and against the party claiming to be jointly in possession. In case, however, the Civil Courts finding would be that both parties are jointly in possession, the Magistrate nas either to drop the proceeding and start another proceeding under Section 107 of the Code of Criminal Procedure or to leave the parties to seek another remedy.

In my opinion, if a dispute in regard to tha actual possession continues to be a live issue as disclosed in the proceeding under Section 145, I see no justification for holding that the proceeding can be dropped. It is, no doubt, true that an order cannot be passed against either party when both are found to be jointly in possession as Sub-section (6) deals with an order being passed agains. one of the two parties, but the dropping of proceeding, in my opinion, would not be the correct order, because in that case even the finding of the Magistrate based upon the finding of the Munsif that both the disputing parties are jointly in possession would be ineffective. The whittling may have to be thrashed out de novo in a proceeding under Section 107, or another proceeding under Section 144 might be started for prevention of the breach or the peace. Hence, it appears to me, in such a case the form of the order should not be the dropping of the pro-ceeding but merely an order to the effect that both parties having been found to be in possession, no order can be passed against either party. The advantage of such an order should be that if a proceeding under Section 107 would have to be started binding down the parties to be of good behaviour and not to commit breach of tne peace, the Magistrate may have the advantage of the order under Section 145 passed in the proceeding prior to the case under Section 107 of the Code. This question may also be looked at from this point of view that such a judgment could operate as an order in favour of one as against the other and vice versa. Nor do sub-sections (4) and (6) which have been referred to for coming to the conclusion that an order under Section 145 can only be passed against one of the two parties to the dispute and, in any other case, the proceeding has to be dropped, appear to me to lead necessarily to that conclusion. aS a matter of fact, when a dispute causing an apprehension of breach of the peace between two or more parties occur, Section 145 comes to be applicable to such a case and unless the Magistrate is satisfied that the apprehension has ceased to exist, he cannot drop the proceeding. He could, no doubt, attach the property in dispute pending tne decision of a Civil Court of competent jurisdiction under Section 146 as it stood prior to the amendment of 1955. But now even that position is not available as the Magistrate has to refer the matter to a Civil Court as mentioned above and an order has to be passed in accordance witn its findings. I can see no justification now tor the Magistrate to drop the proceeding when he has received a finding from the Civil Court that both parties are jointly in possession. I am in respectful agreement with the observation ot their Lordships of the Rajasthan High Court in the above case that Section 146 of the Code is not attracted in such a case. But I am not inclined to agree that the proper order in such a case should be one of dropping the proceeding, but one of disposal of the proceeding holding the parties to be jointly in possession and in view of tne existence of a dispute causing an apprehension of breach of the peace, the Magistrate may start a proceeding under Section 107 of the Code against both or one of the parties as may appear to him to be expedient. In that case, the order under Section 145 can be referred to to bind down one or both the parties and prevent breach of the peace.

8. Accordingly, the order of the learned Magistrate is modified to this extent that the petitioner should be declared to be in possession to the extent of her own interest which is her moiety share and opposite party Ram-chandra Singh is in possession to the extent of the other half and, thus, they are jointly in possession, in case they find it inconvenient to carry on joint cultivation, they may resort to the Civil Court for the necessary relief and, in case the parties or party appear to be bent on committing breach of the peace, the Magistrate may start a proceeding under Section 107 of the Code of Criminal Procedure. The application is allowed in the manner indicated above.

S.P. Singh, J.

9. I agree.