JUDGMENT 1. This is an appeal from a decree of the learned District Judge of Noakhali dismissing the Plaintiff's suit on the ground that it was not maintainable in its present form by reason of the proviso to sec. 42 of the Specific Relief Act (Act I of 1877). It appears that the Administrator-General, who is the Plaintiff in the suit as administrator of the estate of the late Kumar Indra Chandra Singh Bahadur, owned a 14 annas 5 gundas share of Pergunnah Amirabad. The remaining one anna five gundas share is owned by Defendants Nos. 50 to 58. Defendants Nos. 1 to 7 are lessees under the Secretary of State of certain lands belonging to chur Gulyakhali. A dispute arose between the proprietors of Pergunnah Amirabad and these lessees of Gulyakhali as to whether the lands in suit were reformations in situ of Mokat Mandalia or whether they appertained to the chur of Defendants Nos. 1 to 7, that is, chur Gulyakhali. We are told that the Collector, on behalf of the Secretary of State, as landlord of Defendants Nos. 1 to 7, disclaimed any interest in the lands in dispute on behalf of the Secretary of State. In 1906, matters came to a crisis and proceedings were instituted under sec. 145 of the Criminal Procedure Code, the Administrator-General and his co-sharers and the tenants under them being parties on the one side, while Defendants Nos. 1 to 7 and the tenants under them being parties on the other. The Deputy Magistrate who heard the case was unable to decide which of the parties was in possession and he accordingly passed an order under sec. 146of the Code of Criminal Procedure. He also appointed the Collector as Receiver to take possession of the lands. That was on the 19th September 1906. The Administrator-General then moved the High Court but the order of the Deputy Magistrate was confirmed by this Court on the 18th December 1906. On the 4th June 1908, this suit was filed, and the issue which the learned District Judge has decided against the Plaintiff was framed by him on the 5th July 1909, when the suit came on before him for trial. 2. The learned Vakil for the Respondents has very properly conceded that the decision of the learned District Judge is erroneous. Indeed we cannot see how it can possibly be supported. 2. The learned Vakil for the Respondents has very properly conceded that the decision of the learned District Judge is erroneous. Indeed we cannot see how it can possibly be supported. Acting on a supposed analogy between proceedings under the Land Registration Act, and an order under sec. 146 of the Code of Criminal Procedure, the learned District Judge has come to the conclusion that the Plaintiff ought to have included in his prayer for relief a prayer for possession of this property. The analogy to which he alludes is certainly not complete as appears from the decisions which he cited and on which he apparently relies. If an order is passed under a proceeding under the Land Registration Act which has the same effect as an order under sec. 145, Cr. P.C., that is to put one of the parties into the possession of the land, then of course the other party when filing a suit would have to claim possession from the party to whom it was given by that order of the Court. But under sec. 146, Cr. P.C., the order is different. Under that section the Magistrate has to decide either that none of the parties is then in possession, or that he is unable to determine which of them is then in such possession. The last course was the one which was followed in this case. He also delivered over actual possession, pending the suit in a competent Civil Court, to the Collector. It is therefore obvious that possession was not with the Defendants, and the Plaintiff could not be compelled to demand possession from them. If he had, the Defendants certainly could not have given it inasmuch as they had not got it. We therefore think, for these reasons, that the decree of the learned District Judge cannot be supported. The judgment and decree of the lower Court are set aside and the case remanded to that Court for trial of the suit upon the merits. The Appellant must get his costs of this appeal from Respondents-Defendants Nos. 1 to 7, the hearing fee being assessed at 5 gold mohurs. The Appellant will be entitled to a refund of the Court-fee in this appeal.