K. P. MOHAPATRA, J. ( 1 ) THIS revision is directed against the order passed by the learned Additional Sessions Judge, Ganjam reversing the order passed by the learned Sub-Divisional Magistrate, Berhampur who passed orders under S. 146 (1) of the Criminal. P. C. ('code' for short) attaching the disputed land. ( 2 ) THE petitioners were members of the first party and the opposite parties were members of the second party in the proceeding under S. 145 of the Code. There were some third parties before the courts below who were not impleaded as parties in the Criminal Revision. The facts in brief are as follows :- bharat, Dandapani and Maharga were brothers and members of a Hindu joint family. They instituted Title Suit No. 2 of (975 in the Court of the Subordinate Judge, Aska, for a decree to declare their possession in respect of Survey No. 159 in khata No. 28-Ka relating to 8 acres and Survey No. 159 in Khata No. 28 relating to 7 acres of land in village Jura Samantarapur within Pattapur Police Station, Ganjam. During pendency of the suit Bharat died and was substituted by his legal representatives. A decree was passed in the suit on 23-11-1976. The petitioners are the heirs of late Bharat. Opposite parties 1 and 2 are the two other brothers and opposite parties 3 to 8 are their sons. Execution was levied in E. P. No. 13 of 1977 and opposite parties 1 and 2 obtained delivery of possession of the disputed land through court on 9-7-1977. According to the petitioners, after the settlement operation, there was a division of the disputed land and they were in exclusive possession of 8 acres thereof. The opposite parties demanded a sum of Rs. 3000/- from them and as they declined, they created disturbance into their exclusive possession of a part of the disputed land giving rise to apprehension of breach of peace. The case of the second parties is that as evident from the decree in Title Suit No. 2 of 1975, the disputed land is the joint family property of both the petitioners and the opposite parties. In E. P. No. 13 of 1977 opposite parties 1 and 2 obtained delivery of possession of the disputed land and have been in exclusive possession thereof. In E. P. No. 13 of 1977 opposite parties 1 and 2 obtained delivery of possession of the disputed land and have been in exclusive possession thereof. The case of the third parties was that they had raised paddy crops on about 12 acres out of the disputed land and were in exclusive possession thereof. ( 3 ) THE learned Sub-Divisional Magistrate found as follows : -". . . . . . I am of the opinion that the case is of a civil nature and as such all the parties are directed to establish their-rights in a proper and competent court. As so many persons are claiming their possession as encroachers over the suit land, it will not be proper simply to drop the proceeding without making any arrangement to prevent breach of peace that may arise in future. As such I do hereby attach the schedule lands as required u/s. 146 (1) Cr. P. C. The Custodian (R. S. Pattapur) is appointed as Receiver who will take care of the schedule lands. . . . . . . "against the aforesaid order the opposite parties preferred a revision which came for disposal before the learned Additional Sessions Judge who recorded contradictory findings. After having held that the proceeding under S. 145 of the Code was misconceived on account of joint possession of the disputed land by the petitioners and the opposite parties, on the basis of the result of E. P. No. 13 of 1977, he declared that opposite parties 1 and 2, who obtained delivery of possession of the disputed land through court, were in possession of the disputed land. ( 4 ) MR. Sinha, appearing for the petitioners, did not dispute the proposition that in respect of land in joint possession of parties a dispute under S. 145 cannot be raised. But if by amicable settlement, one of the parties is in exclusive possession of a portion of the disputed land in respect of which there is cause for apprehension of breach of peace, provisions of S. 145 can be applied. But if by amicable settlement, one of the parties is in exclusive possession of a portion of the disputed land in respect of which there is cause for apprehension of breach of peace, provisions of S. 145 can be applied. According to him, in this case, although there was no partition by metes and bounds amongst the parties, yet the petitioners having been in exclusive possession in respect of 8 acres out of the disputed land by amicable settlement and as the opposite parties created disturbance there was apprehension of breach of peace and so the learned Sub-Divisional Magistrate was justified in initiating a proceeding under S. 145 and ultimately passing an order of attachment under S. 146 (1) of the Code. Mr. R. C. Ram, representing the opposite parties, on the other hand, contended that a proceeding under S. 145 in respect of joint family property in the hands of coparceners was thoroughly misconceived and so an order of attachment under S. 146 (1) of the Code was entirely illegal. ( 5 ) THE facts of the case and the contentions raised by the learned counsel give rise to the following points for consideration : - 1. Whether a proceeding under S. 145 of the Code in respect of the land in joint possession of parties is maintainable. 2. Whether a proceeding under S. 145 of the Code in respect of land in exclusive possession of one of the members of a joint family is maintainable. 3. Whether in a proceeding under S. 145 in respect of property in joint possession of parties, an order under S. 146 (1) of the Code for attachment can be passed. ( 6 ) THERE are a large number of decisions of different High Courts laying down the principle that unless there is a partition by metes and bounds, any member of a joint family who is in separate possession of any part of the joint family property can only be in possession thereof on behalf of the other members of the joint family. No member of a joint family can claim any part of the joint family property exclusively for himself, because every member of the joint family has a right in the property, though some portion thereof may be in possession of one of the members of the joint family. No member of a joint family can claim any part of the joint family property exclusively for himself, because every member of the joint family has a right in the property, though some portion thereof may be in possession of one of the members of the joint family. In a proceeding under S. 145 of the Code, the dispute must be between parties each of whom claims exclusive possession of the property in dispute. Where the dispute is with regard to property in joint possession of parties, a proceeding under S. 145 of the Code cannot be initiated [see AIR 1930 Bom 172 , in re Venkatraman Rama Hedge v. Emperor, AIR 1935 Nag 44, Laxmanappa v. Ganusingh, AIR 1951 Raj 156 , Nahar Singh v. State, AIR 1963 Pat 320 , Mt. Sudamawati Kuer v. Ram Chandra Singh, AIR 1964 Mys 195, Hanumappa v. Kondappa, AIR 1964 J and K 1, Pir Ghulam Shah v. Pir Meerajuddin, AIR 1967 All 44 , Khem Chand v. Balwant, AIR 1969 Andh Pra 150, K. Janardhan Reddy v. VIth City Magistrate Criminal Court, Hyderabad ILR (1974) Cut 1088, Khetri Pradhan v. Jagannath Pradhan and ILR (1978) 2 Cut 323, Sufal Pradhan v. Sanacharya Pradhan]. ( 7 ) THERE are also good many decisions which have laid down the principle that even if the disputed land is claimed to be in joint possession, but if the court finds that one of the parties to the proceeding is in exclusive possession then a proceeding under S. 145 of the Code is maintainable [see AIR 1932 Pat 366, Nandkeshwar Prasad Sahi v. Sita Saran Sahi, AIR 1940 Pat 135. Syed Zafar Ahsan v. Babu Jugeshwar Bux Roy, AIR 1935 Nag 44, Laxmanappa v. Ganusingh, AIR 1953 Pat 363 , Kapildeo Narain Singh v. Ramdhin Singh, AIR 1963 Pat 320 , Mt. Sudamawati Kuer v. Ram Chandra Singh and AIR 1964 Mys 195, Hanumappa v. Kondappa. ( 8 ) THERE are also some authorities for the proposition that where the disputed property is in joint possession of both parties to the proceeding, it is open to the High Court to cancel the order passed by the trial court relegating the parties to the same position in which they were prior to the commencement of the proceeding under S. 145 of the Code. But the disputed property may be attached under S. 146 of the Code. But the disputed property may be attached under S. 146 of the Code. [see AIR 1932 All 683. Chiranji Lal v. Mahadeo Prasad, and AIR 1953 Orissa 278, Mallik Rafiq v. Mallik Abdul Hakim]. ( 9 ) THE nature of the order that should be legally passed in a proceeding under S. 145 of the Code in a case of joint possession of property in dispute by the parties is no longer res integra. In this respect, the views of this Court are consistent. Although in the cases reported in ILR (1974) Cut 1088 and ILR (1978) 2 Cut 323 (supra) there was no reference to AIR 1953 Orissa 278, but on the other hand, in the earlier case reference was made to AIR 1920 Pat 513, Sham Lal Mahton v. Rajendra Lal and AIR 1969 Andh Pra 150 yet in AIR 1953 Orissa 278 a different view was not taken. It was held : - ". . . . . Doubtless if both perties had asserted that the disputed property was in their joint possession a proceeding under S. 145, Cr. P. C. , may not lie. " but in the facts and circumstances of that particular case involving property claimed to be in joint possession by parties who were Mahomadans, it was held that if one set of persons claimed exclusive possession, in such a case, a proceeding would lie under S. 145 of the Code. It was further held that because the police reported apprehension of breach of peace, it was a fit case for attachment of the property in dispute under S. 146 (1) of the Code. ( 10 ) AS would appear from the facts of this case and the findings recorded by the courts below, both the parties belonged to an undivided Hindu joint family. Indisputedly there was no partition by metes and bounds. No specific finding was also recorded as to who was in actual physical possession of 8 acres of land within the statutory period as contemplated in S. 145 of the Code. Indisputedly there was no partition by metes and bounds. No specific finding was also recorded as to who was in actual physical possession of 8 acres of land within the statutory period as contemplated in S. 145 of the Code. Therefore, according to the concept of Hindu Law, even if, for the sake of convenience, one of the parties is in separate possession of a portion of the joint family property, such possession is on behalf of the other members of the joint family, No member of a joint family can predicate his share before a partition by metes and bounds actually takes place. In such a case, according to the consistent view of this court, action under S. 145 of the Code cannot be taken. ( 11 ) THE learned Additional Sessions Judge held that opposite parties 1 and 2 obtained delivery of possession of the disputed land in E. P. 13 of 1977 on 9-7-1977. On the basis of this fact he declared possession of the opposite parties 1 and 2 in respect thereof. This finding is entirely misconceived for the simple reasons, (i) that acceptance of possession of the disputed land in execution of the decree was also on behalf of the petitioners who were members of the Hindu joint family and (ii) that he did not record a positive finding under sub-sec. (4) of S. 145 of the Code to the effect that opposite parties 1 and 2 were in possession of the subject of dispute at the date of the order made under sub-sec. (1) thereof. On the other hand, after having held that on account of joint possession of the disputed land by the parties, the proceeding under S. 145 of the Code was misconceived, he could not record such a finding in favour of opposite parties 1 and 2. Therefore, his order declaring opposite parties 1 and 2 to be in possession of the disputed land cannot be upheld and must have to be vacated. ( 12 ) IT is next to be examined whether the order passed by the learned Sub-Divisional Magistrate under S. 146 (1) of the Code was a valid order which can be restored. It is too well known that there can be no order under S. 146 without a proceeding under S. 145 of the Code. ( 12 ) IT is next to be examined whether the order passed by the learned Sub-Divisional Magistrate under S. 146 (1) of the Code was a valid order which can be restored. It is too well known that there can be no order under S. 146 without a proceeding under S. 145 of the Code. If a proceeding under S. 145 is held to be misconceived, not in accordance with law and so liable to be dropped, no further order can be passed under S. 145 of the Code. An order under S. 145 (1) of the Code can be passed at any time for making an order under sub-sec. (1) of S. 145 of the Code if the case is one of emergency or if it is decided that none of the parties to the dispute was in possession within the statutory period or if it has not been possible to record as to which of the parties was in possession of the subject of dispute within the statutory period. The order of the learned Sub-Divisional Magistrate will show that he did not specifically record that there was such apprehension of breach of peace that he considered the case to be one of emergency. He did not also record a positive and categorical finding that which of the parties was in possession. He also did not state that he was unable to satisfy himself as to which of them was in possession of the subject of dispute I during the statutory period. In the absence of positive findings as contemplated in S. 146 of the Code, even if it is assumed that the proceeding under S. 145 of the Code was maintainable, yet no order of attachment could be passed under S. 146 (1) of the Code. The order of the learned Sub-Divisional Magistrate under S. 146 of the Code was, therefore, not in accordance with law. ( 13 ) IN the ultimate analysis, the proceeding under S. 145 Cr. P. C. was not maintainable and is liable to be dropped. The order declaring the possession of opposite parties 1 and 2 is vacated. No order under S. 146 (1) of the Code can be passed. ( 14 ) FOR the foregoing reasons, the revision is allowed and the impugned orders passed by the courts below are set aside. P. C. was not maintainable and is liable to be dropped. The order declaring the possession of opposite parties 1 and 2 is vacated. No order under S. 146 (1) of the Code can be passed. ( 14 ) FOR the foregoing reasons, the revision is allowed and the impugned orders passed by the courts below are set aside. The proceeding under S. 145 of the Code is dropped. Revision allowed. .