JUDGMENT 1. These two rules have arisen out of an order passed by the Sub Divisional Magistrate of Tangall, on the 21st May 1906, in a proceeding under sec. 145 of the Code. The Sub-Divisional Magistrate could not determine who was in actual possession of the subject-matter of the, dispute and passed an order under sec. 146 of the Code. But curiously enough he states in the last part of his judgment "It will not be necessary to appoint a Receiver for the garh as the next felling will take place 20 years hence" that is to say, the felling of the gazarl trees which apparently were the subject-matter of the dispute between the parties. How the Magistrate could come on the facts to the conclusion that there was a likelihood of the breach of the peace which would justify the institution of proceedings under see. 145 It Is difficult for us to understand. The subject-matter of the dispute was not capable at the time of being a subject which could give rise to a breach of the peace and not for the next 20 years. 2. The police-report on which the proceeding under sec 145 is based states. In the vaguest, terms that each party claims a certain right, and that inasmuch as both the parties are men of substance there might be a breach of the peace. This. Is one reason why we are disposed to interfere with the order passed by the Sub-Divisional Magistrate under sec. 146 of the Code. 3. But there is another and a more serious point for our consideration, namely, what the subject-matter of the dispute is not clearly defined in the Initial proceeding under sec. 145. The proceeding relates to the "garh" within certain boundaries. Does It refer to land within the boundaries or land with the trees within the boundaries, or only refers to the gazari trees, or other trees as well? The Sub Divisional Magistrate himself felt difficulty. In this matter. It is quite clear from the written statement filed. In the case and from the order of the Sub-Divisional Magistrate of the 21st May that the second party, the Maharaja of Mymensingh, claims the land within the boundaries as a portion of Pargana Pankooria, Mouzah Bhanikatra. He claims the proprietary right and the right to the trees growing on it. It is quite clear from the written statement filed. In the case and from the order of the Sub-Divisional Magistrate of the 21st May that the second party, the Maharaja of Mymensingh, claims the land within the boundaries as a portion of Pargana Pankooria, Mouzah Bhanikatra. He claims the proprietary right and the right to the trees growing on it. The first party, on the other hand, the Maharaja of Nattore, claims not exactly the land but the gazari trees as appertaining to taraf Balasull. The Sub-Divisional Magistrate says that it is not quite clear whether the Maharaja of Nattore put forward any claim to the land. 4. In this state of things, It must be very difficult to determine the question of possession and also whether there was any likelihood of the breach of the peace. In order that an order might be passed under sec. 145 or 146, Cr. P.C. the subject-matter of the dispute must be clearly determined. In this case the Magistrate distantly says that he has not been able to determine what the claims of the respective parties are, and it is evident that no order could be passed under such circumstances except an order under sec. 146. In our opinion, the subject-matter of dispute should have been determined first, and then a proceeding should have been drawn up under sec. 145. 5. As, however, we understand the learned Counsel on either side, the subject-matter of dispute was really the gazari trees on the land. Gazari trees were the subject-matter of dispute in the previous proceeding at all events the one in 1856. Since the year 1890 acts of possession with reference to the trees must have been few and far between; and as the Sub-Divisional Magistrate has himself said it was not likely that there should be any acts of possession exercised since. 6. We are therefore of opinion that the proceedings under sec. 145 as well as the order made under it under sec. 146 should be set aside, and we direct accordingly. 7. 6. We are therefore of opinion that the proceedings under sec. 145 as well as the order made under it under sec. 146 should be set aside, and we direct accordingly. 7. But at the same time it is desirable that if the Magistrate thinks it proper he should determine at first what is the disputed property between the parties, the trees or the land or both; and if he thinks that it is only the trees which are claimed by the Maharaja of Nattore he may either institute fresh proceedings under sec. 145 if there was a likelihood of the breach of the peace, or proceedings under sec. 117 or 107 against both or either of them. 8. As regards the question whether sec. 145 applies in a case like this where only trees are claimed and not the land, a difficulty arises from the words of sec. 145 as well as of sec. 147. The original words in the sub-sec. (1) of sec. 145, as we find in the repealed Codes, were "tangible immoveable property." They have been substituted by the words "any land or water." Sub-sec. (2) defines "land or water." It includes "buildings, markets, fisheries, crops, or other produce of land, etc." 9. The gazari trees may come within the term "other produce of land." In sec. 147 the right of use of land or water includes "any right of way or other easement over the same." 10. It is not necessary for us now to determine whether the proceeding should be under sec. 145 or 147 if the Magistrate finds that there is a likelihood of a breach of the peace. The rules in both the cases are made absolute.