JUDGMENT O. P. Trivedi, J. - This criminal reference has been made by the Additional Sessions Judge, Gonda, recommending that the order of the Sub-divisional Magistrate Utraula dated 6-5-1968 be set aside and he be directed to decide the question of actual possession of the disputed plots and to dispose of the case thereafter in accordance with law. 2. The facts leading to this reference are these :- On 29-3-1968 the police submitted a report to the Sub-divisional Magistrate Utraula saying that both the parties were in possession of separate portions of the plots in dispute; they have been sowing crop on their separate portions but disputes arise between them at the time of harvestation of the crop. There was an apprehension of breach of the peace and it was recommended that proceedings under Section 145, Code of Criminal Procedure may be taken against them. On this report on 1-4-1968 the Magistrate passed a preliminary order under Section 145 (1), Code of Criminal Procedure directing at the same time attachment of the plots in dispute. Written statement was filed before the Magistrate by Mohammad Shafiq applicant and affidavits were filed on behalf of the opposite parties. It was averred on behalf of Mohammad Shafiq in his written statement that the plots in dispute originally belonged to Dahu Haji and on his death they were inherited by Smt. Abadani in 114th share and the rest by the opposite parties Mohammad Yaqub, Rahmat Ullah and Nigah Mohammad in equal shares. The joint share of the opposite parties was three fourth share. On 10-7-1967 Smt. Abadani transferred by sale her 114th share in the plots to the applicant Mohammad Shafiq. Srimati Abadani was in possession over specific portions of the disputed plots and the applicant entered into possession over her portions of the share and had continued to be in possession of that land ever since. At the stage of final hearing an objection was raised before the Magistrate on behalf of the opposite parties that he had no jurisdiction to proceed under Section 145, Code of Criminal Procedure as it was a case of joint ownership. Accepting this contention and relying upon the case of Khem Chand v. Balwant, 1967 A.W.R. (H.C.) 113, the Magistrate dropped the proceedings. While doing so he was influenced also by the circumstance that a civil litigation relating to the disputed land was pending between the parties. Accepting this contention and relying upon the case of Khem Chand v. Balwant, 1967 A.W.R. (H.C.) 113, the Magistrate dropped the proceedings. While doing so he was influenced also by the circumstance that a civil litigation relating to the disputed land was pending between the parties. While dropping the proceedings however, the Magistrate directed release of the attached property in favour of the opposite parties subject to their depositing a sum of Rs. 4,000/- in court within specified time and their under. taking to pay a sum of Rs. 1,000/- in court annually. 3. The Magistrate has not chosen to make any submission by way of explanation. On a perusal of the judgment of the learned Sessions judge and on hearing the arguments of the learned counsel for the parties I am of the opinion that this reference deserves to be accepted. The Magistrate misapplied the case of Khem Chand v. Balwant in passing the impugned order. As held in the case of Khem Chand' Section 145, Code of Criminal Procedure is not applied where the parties to the dispute are in joint possession of the property. In this case the Magistrate (lid not record a finding that the parties were in joint possession of the disputed plots. Indeed the parties never admitted that they were in joint possession. On the other hand, the opposite parties denied not only that Smt. Abadani the alleged vendor of Mohammad Shafiq applicant had no share in or possession over the land but also that the applicant Mohammad Shafiq had secured any share in the land from her by a valid transfer and that Mohammad Shafiq had ever been in possession of any portion of the disputed land. On the other hand, the opposite parties claimed to be in exclusive actual possession of the entire disputed land. What the opposite parties contended was that on the allegations of Mohammad Shafiq the parties were co-sharers in the disputed land and therefore Section 145 did not apply. The Magistrate appears to have proceeded on the basis that the parties were co-sharers and that as the dispute related to property in which they were co-sharers and as the share of Mohammad Shafiq had not been separated by metes and bounds Section 145, Code of Criminal Procedure did not apply. This was an incorrect law. The Magistrate appears to have proceeded on the basis that the parties were co-sharers and that as the dispute related to property in which they were co-sharers and as the share of Mohammad Shafiq had not been separated by metes and bounds Section 145, Code of Criminal Procedure did not apply. This was an incorrect law. The law is not that Section 145 will not apply if the dispute relates to property owned by several persons but the law is that Section 145 does not apply if the parties to a dispute are in joint possession of the property. It is the joint possession and not joint ownership or title which ousts jurisdiction of the Magistrate under Section 145 of the Code and herein lay the mistake of the Magistrate. It is difficult to say that it was the case of any of the parties that they were in joint possession between them over the land. On the other hand, the case of Mohammad Shafiq was that he since the time of his predecessor Smt. Abadani was in actual possession of specific portion of the disputed plots and that the opposite parties were in actual possession of the remaining portion of the plots that is to say, according to the applicant both the parties were in actual possession of specific separate portions of the disputed plots whereas according to the opposite parties they were in sole and exclusive possession of the disputed plots to the exclusion of Mohammad Shafiq. It would thus appear that it was not the case of any party that they were in joint possession and the Magistrate never recorded a finding that they were in joint possession. That being so, his jurisdiction under Section 145 of the Code did not stand ousted and he misconstrued the decision in Khem Chand's case in holding otherwise and in dropping the proceedings. It is relevant in this connection to refer to the police report dated 29-3-1968 which stated that as a result of private arrangement Smt. Abadani was carrying on separate cultivation on a portion of the disputed plots; that the opposite parties were putting all sorts of obstacles in her way and in disgust she sold 1 4th share in the plots to Mohammad Shafiq and put him in possession of the portion which was being cultivated by her. The report further stated that both the parties had been cultivating and sowing different portions of the land but there are dispute at the time of harvestation of the crop. This report was in line with the case which was set up for Mohammad Shafiq. The point to notice is that even the police report did not make out a case of joint possession. In the circumstances, the Magistrate had jurisdiction to proceed under Section 145 of the Code. It was necessary for him to enter into an inquiry on the question of possession and to determine which party was in possession in accordance with sub-sec. (3) of Section 145 of the Code. If as a result of such an inquiry he had found that the contention of the opposite parties, namely, that they were in sole and exclusive possession over the disputed plots were tine thin it would not be a case of joint possession because the opposite panics never admitted the title of the applicant nor never claimed to be in possession of the plots on their own behalf and on behalf of the applicant. The jurisdiction of the Magistrate would have thus remained unaffected. If the Magistrate had found on the other hand, as a result of inquiry, that both the parties were in actual possession over specific portions of the disputed plots as contended for the applicant then also he would have jurisdiction to proceed under Section 145 of the Code. The foundation of jurisdiction of the Magistrate in cases in which parties to a dispute are not in joint possession is existence of a dispute with regard to land water or boundaries thereof between them and the apprehension of breach of peace. If co-sharers are in actual possession over different portions of joint land as a result of private arrangement and if a dispute arises between them leading to an apprehension of breach of peace then the Magistrate is fully competent to take preventive action under Section 145 notwithstanding the fact that the dispute relates to joint property. As was held in the case of Sardar Singh v. Hansraj Singh, 1966 A.W.R. (H.C.) 536 foundation for an order under Section 145 is existence of an apprehension of breach of the peace. In the case of Mst. Hosnaki v. State, A.I.R. 1956 Allahabad 8 it was observed that "the use of the word 'shall' in sub-sec. As was held in the case of Sardar Singh v. Hansraj Singh, 1966 A.W.R. (H.C.) 536 foundation for an order under Section 145 is existence of an apprehension of breach of the peace. In the case of Mst. Hosnaki v. State, A.I.R. 1956 Allahabad 8 it was observed that "the use of the word 'shall' in sub-sec. (1) of Section 145 of the Code makes it obligatory on the Magistrate to assume jurisdiction on being satisfied that a dispute likely to cause a breach of the peace exists. Neither is any other fact required to exist before he can assume jurisdiction nor is his jurisdiction barred by the existence of any fact." 4. In the case of Jafar Husain v. State, 1968 A.L.J. 1018 it was observed : "If there is an apprehension of breach of peace unconnected with any immovable property, then certainly Section 107 of the Code of Criminal Procedure applies: but if 'a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, then the Magistrate shall make an order in writing under Section 145 (1), Cr. P. C. The Magistrate has no option in the matter. He cannot proceed under Section 107, Cr. P. C. If the dispute is co-related to land or water or boundaries thereof, it is only Section 145, Cr. P. C. which gives him power to proceed in the matter." Both in this case as well as in the case of Mst. Hosnaki v. State it was further observed that this jurisdiction of the Magistrate to take preventive action when there is a dispute with regard to land remains unaffected by the pendency of civil litigation between the parties in respect of title. 5. For the above reasons this reference is accepted. The order of the Magistrate dated 6-5-1968 is quashed. The case shall be sent clown to the Magistrate with the direction that he shall enter into an inquiry into the question of possession of parties over the disputed land and dispose of the matter under Section 145, Code of Criminal Procedure pending before him in accordance with law.