Bapna, J—This is a reference by the learned Additional Sessions Judge, Dholpur by order of 15th February, 1957. 2. Dariya made an application to the learned Sub-Divisional Magistrate, Dholpur on 27th June, 1956 that he with his nephew Sukha were in possession of Raimjawala land in village Gunpur Tehsil Rajakhera for a number of years but there was interference by Suda and Bhagwan Singh, non-petitioners. The dispute first arose about that land in 1954 which led to an institution of the suit by the petitioner. The petitioner was successful. A Panchayat was also held in respect of that land, and Panchas on 8th June, 195 V also decided the possession in favour of the petitioner. It was alleged that the non-petitioners were, however, bent upon taking possession of the land and committing breach of the peace. He therefore, prayed that proceedings be taken under sec. 143 of the Criminal Procedure Code for declaring his possession and for prohibiting the non-petitioners not to disturb the possession of Dariya, petitioner. The learned Sub-Divisional Magistrate passed a preliminary order on 9th October, 1956 and attached the land in dispute which was khasra No. 615 in village Gunpur. After perusing the affidavits, the learned Sub Divisional Magistrate held that on the petitioners own showing the land was in actual possession of Sukha, who was not a servant but a partner in cultivation, and therefore the petitioner had no locus standi to come to court for declaring his possession. He dismissed the application on 9th October, 1936. On revision the learned Additional Sessions Judge has recommended that the order of the Sub-Divisional Magistrate of 9th October, 1956 be set abide and the case be sent back to him for decision on merits. 3. It was observed by the learned Additional Sessions Judge that actual possession need not be confined to mere bodily personal possession, but that it would still be an actual possession if the petitioner was constructively in possession of the property. There is some difference of opinion among the High Courts and some of them have taken the view that in order that the court may interfere under sec. 145 Cr.P.C. the possession of a claimant should be actual physical possession and the constructive possession, as for example through tenants, dors not entitle a person for an order under sec. There is some difference of opinion among the High Courts and some of them have taken the view that in order that the court may interfere under sec. 145 Cr.P.C. the possession of a claimant should be actual physical possession and the constructive possession, as for example through tenants, dors not entitle a person for an order under sec. 145 Cr.P.C. vide Penumatsa Ranga Razu of Vempa vs. Sree Rajah Kandregula Sreenivasa (1). This decisions was not followed in a subsequent case of the same court in P. Venu-gopal Mudaliar vs. P.V. Neelakanta Mudaliar (2). It was held in the latter case that — "as between a landlord and tenant the rule that the possession of the tenant is the possess on of the landlord does not apply, but as between rival landlords or between the landlord and the tenant of another landlord the rule will apply tor the purpose of a declaration under sec. 145." 4 In the recent case Padmaraju Subbaraju vs. Padmaraju Koneti Raju (3), it was held— "where a third person in is possession and claims under one of the parties, it is that party who is in actual possession and such party is entitled to a declaration." 5. In my opinion if there is no dispute or clash of interest between the person who is in actual possession, and the petitioner through whom such person is in possession, the petitioner has a right to come to court if his such possession is interfered within circumstances mentioned in sec. 145 Cr.P.C. While it was admitted that Sukha was actually cultivating the land, it was also said that he was the nephew of the petitioner and was living with him. Sukha also in his affidavit said that he was living with his uncle Dariya and was in possession of the land through his uncle Dariya who was recorded as the tenant in the revenue records. There was thus no clash of interest. Dariya was, therefore, entitled to come to court and pray for action under sec. 143 Cr.P.C. against others who, according to the petitioner, was to commit trespass on his land and there is apprehension of breacn of peace. 6. The reference is, therefore, allowed, The order of the learned Sub-Divisional Magistrate dated 9th October, 1956 is set aside and the case will go back to him lor decision.