On an application made by the first party/Opp. party, herein, after called 'the opposite party' on 29.12.81 for restraining the 2nd party/petitioner hereinafter called 'the petitioner' from con­structing any house on the disputed land with a house thereon measuring 2K 8Ls, which the petitioner had been occupying as a licensee and was allegedly trying to construct a house, the lear­ned Magistrate first drew up a proceeding under Sec. 144 of the Cr. P.C. restraining the petitioner from constructing house over the dispute land. Later on 18.2.82 the proceeding was converted to one under Sec. 145 Cr. P.C. and the parties were asked to file their written statements, and when filed, the learned Ma­gistrate on the basis thereof declared possession of the opposite party over the dispute land. Hence, this revision petition. Mr. S. R. Bhattacharjee for the petitioner submits : The learned Magistrate having found that the petitioner was in possession of the land and house in dispute as a licensee of the opposite party tie ought to have declared possession in favour of the petitioner; and he acted contrary to the provisions of Sec. 145 Cr. P. C. in declaring possession in favour of the opposite party on the gro­und that he was the licensor in respect of the dispute land and house. Mr. B. C. Das for the opposite party submits: The petitioner was in possession of the dispute land and house only as a licensee and as he tried to construct another house therein the dispute arose and the learned Magistrate rightly declared possession in favour of the opposite party who was the owner and licensor in res­pect of the land and house occupied by the petitioner. The learned Magistrate did not act in violation of the provisions of Section 145 of the Cr.P.C. On perusal of the impunged order there is no doubt that the learned Magistrate accepted the statement of the opposite party that the petitioner was only a licensee under him and that the petitioner had started constructing a house over the dispute land. Learned Magistrate held that the claim of actual possession by the opposite party was true and accordingly he declared that the opposite party was in possession of the dis­pute land and house and was entitled to retain such possession until ousted in due course of law. Learned Magistrate held that the claim of actual possession by the opposite party was true and accordingly he declared that the opposite party was in possession of the dis­pute land and house and was entitled to retain such possession until ousted in due course of law. The question, therefore is, whether the learned Magistrate in so declaring possession acted in accordance with the pro­visions of sub-sections (1) and (4) of Sec. 145 of the Code of Crimi­nal Procedure ? Section 145 deals with the procedure where dis­pute concerning land and water is likely to cause breach of peace. Under sub-section (1) thereof whenever an Executive Magistrate is satisfied from a report of a police officer or upon other infor­mation that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing stating the gro­unds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims/as respects the fact of actual possession/of the subject of dispute. (emphasis supplied). Under sub section (4), the Magistrate shall then, without reference to the merits or the claims of any of the parties to aright to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence if any, as be thinks necessary, and, if possible decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession or the subject of dispute. Provided that, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (I). Thus under the above provisions, the Magistrate's duty is to dec­lare and maintain the possession, which means actual physical possession; and this question must be determined irrespective of title or the right to possession. Actual possession exists where the land or property is in the immediate occupancy and control of the party. The actual possession contemplated may even be wrongful possession. The fact of actual possession is to be deter­mined without reference to the merits or the claim of right to possess. Sub-section (4) makes it clear that the question of title cannot be investigated or decided. The question of title is irrele­vant except in so far as it may throw light on the fact of actual possession. The word 'actual' is used in contradistinction to 'cons­tructive'. Actual possession is the possession of a person who has his feet on the land. As between the landlord and tenant, Section 145 applies to protect the dispossession of tenant by the landlord. Law does not allow the landlord to dispossess the tenant not in accordance with law. As between the licensor and the licensee Section 145 Cr. P. C. applies to protect the posse­ssion of the licensee. The licensor is not allowed to dispossess the licensee forcefully or by any means not in accordance with law. It is a settled law that the question of ownership or right is not relevant for the purpose of determining the fact of actual possession in a proceeding under Section 145 Cr. P C. Ownership is the plenary control over a property. Austin defines - owner­ship as right over a determinate thing, indefinite in point of user, un-restricted in point of disposition, and unlimited in point of du­ration. Thus ownership gives right to possess, right to enjoy and right to dispose of. Possession means some form of continuing relation of fact between a person and a material object. It means continuing exercise of claim to exclusive use of the property. It is the condition of facts under which one cm exercise his power over a property at his pleasure to the exclusion of all other persons. There is distinction between possession in fact or posse­ssion in law. A man may possess a property in defiance of the law, no less than in accordance with it. It is the condition of facts under which one cm exercise his power over a property at his pleasure to the exclusion of all other persons. There is distinction between possession in fact or posse­ssion in law. A man may possess a property in defiance of the law, no less than in accordance with it. Possession may and usua­lly does exist both in fact and in law; Possession may exist in fact, but not in law; and possession may exist in law, but not in fact. According to Salmond. "law recognises as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reasons to the contrary''. Law also recog­nises possession which exist in fact but not in law. "Thus the possession by a servant of his master's property is for some purposes not recognised as such by the law, and he is then said to have detention or custody rather then possession". Law also recog­nises that possession may exist in law but not in fact; that is to say, for some special reasons the law attributes the advan­tages and results of possession to some one who as a matter of fact does not possess. The possession thus attributed to him is by English lawyers termed "constructive''. The Roman lawyers termed possession in fact as 'possession naturalis', and possession in law as 'possessio civilis'. Possession again may be corporeal and incorporeal. Corporeal possession is the possession of a mate­rial object such as land, house etc. Incorporeal possession is the possession of anything other than a material object for example a way over another man's land. The Roman lawyers called cor­poreal possession as 'possessio corporis', while incorporeal was called as 'possessio juris'. In a proceeding under Sec. 145 Cr. P. C. the court is concerned with corporeal possession in fact or 'possessio naturalis'. A corporeal possession is the continuing exercise of a claim over a material object to the exclusive use of it. It is a relation of fact and not one of right. As Salmond analyses, a man may possess a thing in defiance of the law, on less than in accordance with it. A thief has possession in law, although he has acquired it contrary to law. It is a relation of fact and not one of right. As Salmond analyses, a man may possess a thing in defiance of the law, on less than in accordance with it. A thief has possession in law, although he has acquired it contrary to law. The law condemns his possession as wrongful, but at the same time recognises that it exists, and attributes to it most, if not all, of the ordinary consequences of possession. Similarly trespasser has possession over the land he has trespassed upon although he has done it con­trary to law. The law condemns his possession as wrongful, but at the same time recognises that it exists, and attributes to it unjust if not all, of the ordinary consequences of possession. The licensee has possession over the land granted to him under the licensee. Law will protect his possession if be is sought to be dispo­ssessed by violent self help. He can be dispossessed by the licensor only in accordance with law. The possession of a material object involves two distinct elements, one of which is mental or subjective, and the other physical or objective. The one consists in the intention of the possessor with respect to the thing possessed; while the other consists in the external facts in which this inten­tion has realised, embodied, or fulfilled itself. These two con­stituent elements of possession were distinguished by the lawyers as "animus' and 'corpus'. The subjective element is more parti­cularly called the 'aminus possidendi', 'anuimus sibi habendi' or 'animus domini'. To constitute possession the 'animus domini' is not itself sufficient; but must be embodied in a 'corpus'. The will is sufficient only when manifested in an appropriate environment of fact, just as the fact is sufficient only when it is the expression and embodiment of the required intent and will. Possession is the effective realisation in fact of the 'animus sibi habendi'-. To constitute possession the 'animus domini' must realise itself in both of these relations. The necessary relation between the po­ssessor and the thing possessed is such as to admit of his making such use of it as accords with the nature of the thing and of his claim to it. There must be no barrier between him and it, inconsistent with the nature of the claim he makes to it. The necessary relation between the po­ssessor and the thing possessed is such as to admit of his making such use of it as accords with the nature of the thing and of his claim to it. There must be no barrier between him and it, inconsistent with the nature of the claim he makes to it. The fact of actual possession will be found where the party has the 'animus domini' to possess the disputed land and he in fact poss­essed it. Actual possession is to be distinguished from construc­tive possession. When a person grants a licence to another to possess his land and puts the licensee in possession, the licensee satisfies both the requirements of the 'animus' and Corpus of posse­ssion. Applying the above principles to the facts of the instant case, if the opposite party was the owner of the disputed land and house he had the right to possess it also. If he had granted a licence to the petitioner to possess that land and house and put the latter in possession thereof, it was the petitioner who was in actual possession thereof having both the animus' and the 'corpus'. As. against third parties, the constructive possession was with the opposite party. But as between the licenssor and the licensee it was the petitioner as the licensee who was in actual physical posse­ssion and this possession has been found by the learned Magistrate. Under the provisions of sub-sections (1) and (4) of Section 145 Cr. P. C. the actual possession was with the petitioner vis-a-vis opposite party; and the Magistrate ought to have declared possession as such. As the contrary was done, the impugned order cannot be sustained. The result is that the impugned order is set aside and the proceeding is remanded to the learned Magistrate for disposal according to law after notice and giving a hearing to the parties. This revision petition is accordingly allowed and the rule is made absolute. Send down the records forthwith.