BERI, C. J. - (1.) THIS is a revision application directed against the judgment of the learned Addl. Sessions Judge, Jhalawar, dated September 20, in a proceeding under sec. 145, Criminal P. C.
(2.) SHARAFAT Ali filed an application under sec. 145, Criminal P. C. on July 28, 1969 in the Court of the Sub Divisional Magistrate, Iklera saying that in village Daletpur Tehsil Iklera he had agricultural land measuring 31 Bighas and 16 Biswas in his possession and that the opposite parties Mst Choti, Azim Hussain, Ramzan and Gul Mohammad had forcibly dispossessed him. Reply was filed on behalf of the opposite parties saying that in the land in dispute there were trees of 'mauwa' and mangoes, the fruits whereof were being taken by Mst. Chhoti. They disputed that they had forcibly dispossessed SHARAFAT Ali. The parties filed their written statements, affidavits and certain revenue records. The learned Sub Divisional Magistrate after examining the record came to the conclusion that SHARAFAT Ali was not in possession of the land measuring 5 Bighas 18 Biswas but he was in possession of 25 Bighas 18 Biswas. He accordingly declared his possession and ordered that he may be put in possession thereof but by way of a proviso he added that the possession of the trees standing on this land was that of Mst. Chhoti and that she would remain in possession there of until she was evicted in due course of law. Dis-satisfied, Mst. Chhoti and Azim Hussain preferred a revision application before the learned Additional Sessions Judge, Jhalawar, who found fault with the case of the applicant Mst. Chhoti that she had not even filed an answer and he saw ho reason to disturb the finding reached by the learned Sub Divisional Magistrate. Mst, Chhoti and Azim Hussain are still dissatisfied and they are before me Mr. Dave argues that the order of the learned Magistrate is contradictory and impracticable. He has declared Mst. Chhoti to be in possession of trees but Sharafat Ali to be in possession of the land measuring 25 Bighas and 18 Biswas. How could Mst. Chhoti, urged the learned counsel, take advantage of the fruits of the trees without travelling to the land on which they stand and, therefore, this was a case of Joint possession which did not attract the provisions of section 145, Criminal P. C. No one appears on behalf of Sharafat Ali and others. In a proceeding under sec. 145, Criminal P. C. if a Magistrate was satisfied that there is a dispute likely to cause breach of the peace concerning any land and water or boundaries thereof within the local limits of such Magistrate's jurisdiction he shall inquire in regard to the possession thereof and decide the question whether any and which of the parties was at the date of the order in such possession of the said subject. According to the extended meaning of the word land given in sec. 145 (2) land includes produce of land. Trees are undoubtedly produce of land and for the purpose of attracting jurisdiction under sec. 145, Criminal P. C. there can be no doubt that standing trees will also come within the expression "land" as employed in sec. 145, Criminal P. C. Reference in this connection may be made to Mannarghat Moopil Nair vs. M. C. Chandy and others (1 ). Now the conclusion reached by the learned Magistrate is that the land is in possession of Sharafat Ali but the trees are in possession of Mst. Chhoti as if for the purpose of his decision land was partly in possession of Sharafat Ali and partly in possession of Mst. Chhoti. Such a conclusion will perpetuate dispute rather than solve it. It appears that it might possibly be a case of joint possession in which ordinarily sec 145, Cr. P. C. is not attracted. The learned Magistrate, will therefore, have to examine whether it is a case of joint possession and whether there is a real and genuine apprehension of a breach of the peace between the parties and then decide whether he can really determine the question of possession or for the purposes of question of peace he can put provisions of sec. 107, Cr. P. C. A compound order of the manner in which the learned Magistrate has expressed himself is no solution envisaged by the provisions of sec. 145, Cr. P. C.
(3.) I accordingly, quash the orders of the learned Magistrate and that of the learned Additional Sessions Judge and send this case back to the learned Sub Divisional Magistrate, Iklera to decide it expeditiously. .;