James, J.There is a dispute between the four petitioners and three men named Mohid, Wahid and Mazhar regarding possession of certain land in the Siwan subdivision. In August 1929 the Sub-divisional Magistrate of Siwan issued an order u/s 144, Criminal P.C. against Mohid, Wahid and Mazhar which was rescinded by the District Magistrate on 23rd September with an expression of opinion that possession was with the persons against whom the Sub-divisional Magistrate had made his order absolute.

2. At the beginning of 1930 the parties were quarrelling again. Mohid prosecuted the petitioners who are now before this Court alleging that they had committed an offence punishable u/s 323, I.P.C., in a quarrel arising out of this disputed claim to possession. The case was tried by an Honorary Magistrate who found that Mohid had not been assaulted as he alleged and acquitted the four petitioners. At the same time treating the order of the District Magistrate u/s 144 as practically amounting to res judicata he found that the complainant was in possession of the disputed land. Mater Chamar made a counter-complaint against Mohids party which was summarily dismissed u/s 203, Criminal P.C. on the strength of the decision of the Honorrary Magistrate. In April last the Sub-divisional Magistrate drew up preceding u/s 107, Criminal P.C., against the four petitioners remarking that there had already been findings on the question of possession by two Courts by the Court of the District Magistrate in his order of 23rd September and by the Honorary Magistrate in his order of 18th February. On this ground he rejected the petition of the opposite party praying for the initiation of proceedings u/s 145, Criminal P.C. or in the alternative that proceedings u/s 107 of the Coda might be instituted against the opposite party also.

3. Mr. Varma on behalf of the petitioners argues that the dispute which has led to these proceedings is a dispute regarding possession of land so that the Magistrate, before he can take action u/s 107, must decide which of the two parties is in possession, that is to say, he must decide what practically amounts to a case u/s 145 before he can take proceedings against one of the parties u/s 107 so that it would be a simpler course to take proceedings u/s 145.

4. It is true that where one party who is clearly in the wrong threatens to disturb the rights of another who is in actual possession of the land, the provisions of Section 145 have no application, as was pointed out in Shama Charan and Others Vs. Emperor, . But in that case it was, also pointed out that the proper course when there is a real dispute regarding land is to proceed u/s 145, since otherwise the effect might be to bind down one of the parties to the dispute, without any adjudication on the question as to which of the two parties is in possession. The learned Sub-Divisional Magistrate in this case takes the view that one party is shown to be clearly in the wrong by the order of his superior officer made u/s 144, Criminal P.C., and by the Honorary Magistrates order acquitting four petitioners on the charge framed u/s 323, I.P.C.

5. The decision of the learned District Magistrate of 23rd September 1929 merely rescinded the order which had been made u/s 144. If the learned District Magistrate had affirmed the order u/s 144, and if the Sub-divisional Magistrate had now been hearing the matter u/s 145, he would have been obliged to hold that no evidence could be offered to show the possession of either party for the period during which the order u/s 144 was in force: Joyanti Kumar Mukherji v. J.B. Middeton [1900] 27 Cal. 785. But if a definite order u/s 144 must be ignored when evidence regarding possession is being considered in proceedings u/s 145, a decision refusing to take action u/s 144 or rescinding an order u/s 144, must certainly also be ignored. The remark of the learned District Magistrate that one party or the other was in possession cannot be treated as proving in any way that they were in possession, and the petitioners themselves cannot take advantage of the fact that they enjoyed possession during the period between the date of the Sub-divisional Magistrates order u/s 144 in their favour and 23rd September, when the order was rescinded.

6. The learned Sub-Divisional Magistrate remarks that there was no motion against any of these orders, including the order of 23rd September. If the petitioners had moved against the District Magistrates order of 23rd September their application would have been summarily rejected, because the High Court would not have entertained an application in which it was impossible to grant any relief. The High Court could not have restored the order of the Sub-divisional Magistrate after it had expired by lapse of time, and an application for revision would not have been admitted when no relief could be granted.

7. Similar by the learned Sub-Divisional Magistrate must not treat the obiter dicta of the Honorary Magistrate who disposed of the case instituted by Mohid as excusing him from examining the evidence on the question of possession. All that is finally decided by that case is that the four petitioners did not assault Mohid. The learned Magistrates remarks on the question of possession are obiter dicta, since if Mohid was not; assaulted by the petitioners the question of who was in possession of the land did not arise. Similarly the fact that Matar Chamars counter-claim was dismissed u/s 203, Criminal P.C., is evidence of nothing more than of the fact that the Magistrate did not believe that the persons accused in that case had assaulted Matar Chamar. It has no bearing of any kind on the question of possession.

8. It will therefore be necessary before proceedings u/s 107 Criminal P.C., can be properly instituted against the petitioners, to ascertain which of the parties to this dispute is in possession of the land, which can more conveniently be done by proceedings u/s 145. No justification has been made out for selecting the four petitioners as the persons against whom proceedings should be taken instead of the members of the opposite party, and in the circumstances I consider that the proceedings u/s 107, Criminal P.C. should be quashed. If the learned Magistrate considers that danger of a breach of the peace renders proceedings under Part 4, Criminal P.C. necessary he should proceed u/s 145.