Ambika Pandey v. Gokul Pandey — 1959 DIGILAW 138 (PAT)

Judgment H.Mohapatra, J. 1. This is a reference made under Sec. 438 of the Code of Criminal Procedure by the learned Sessions Judge, Monghyr, to set aside the order passed by the learned Sub-divisional Magistrate, Jamui, on 7-7-1956, dropping the proceedings started under Sec.147 of the Code of Criminal Procedure. There was a dispute between the parties in respect of certain lands including plot No. 1835 on which a temple of the deity Sri Netula Devi is situated. A proceeding under Section 107 of the Code of Criminal Procedure was first started with reference to this dispute, and at one stage it came to this Court when that proceeding was set aside. Subsequent to that, proceedings under Sec.145 of the Code of Criminal Procedure were started in respect of the same dispute between the parties which ended on 16-4-1955, by an order passed by the learned Magistrate, by which, he attached the disputed properties under Sec.146 of the Code of Criminal Procedure until a competent Civil Court determined the rights of the parties therein. The order shows that the case of the first party before the learned Magistrate in those proceedings was that Ghogho Pandey got two shares in the Bramhottar land under khata No. 380, on a portion of which is situated the temple of the deity. After Ghogho Pandey, the properties came to his widow, Mr. Bandho, on whose death, her sons-in-law, Kumar and Gokhul, began to look after the property including the worship in the temple. The Puja was alleged to be done by rotation. The first party claimed their share in the temple as well as the income. They admitted that the second party also had interest in the properties and were entitled to perform the Seva Puja for some days. The second partys case was that they were in possession of the temple jointly among themselves and they were jointly enjoying the income from the offerings of the temple. They asserted that the first party was not in possession. Thus, while according to the first party, both parties were enjoying possession, according to the second party, they alone were in possession of the temple and the offerings made to the deity in the temple. They asserted that the first party was not in possession. Thus, while according to the first party, both parties were enjoying possession, according to the second party, they alone were in possession of the temple and the offerings made to the deity in the temple. The learned Magistrate after discussing the evidence adduced by both parties, found that it was not proved which of parties before him was in exclusive possession or the land containing the temple and the income arising from the offerings made therein. He, therefore, referred the parties to the Civil Court and attached the properties in question. It is dear from this order that the subject-matter in dispute under Sec.145 of the Code of Criminal Procedure was not only the land on which the temple was situated but also the income arising out of the offerings made in the temple, and one of the modes of possession of the land having the temple thereon was asserted by both the parties to be the appropriation of the offerings made to the deity in that temple. 2. Subsequent to this order passed under Sec.143 of the Code of Criminal Procedure on 16-4-1955, a proceeding under Sec.147 of the Code was initiated at the instance of Ambika Pandey and others as the first party who were second party in the proceedings under Sec.145 of the Code referred to above. Gokhul Pandey and others who were the first party in the proceeding under Sec.145, were impleaded as the second party in the present proceedings under Sec.147 of the Code of Criminal Procedure. The learned Sub-divisional Magistrate of Jamui by his order dated 7-7-1956, has observed as follows : "The parties have already been referred to the Civil Court in the previous proceeding under Sec.145, Criminal Procedure Code. The evidence in this proceeding has been given exactly in the nature of a claim to title and a proper decision can be obtained only through the Civil Court as ordered in the proceeding under Sec.145. Criminal Procedure Code. The present proceeding under Sec.147, Criminal Procedure Code, is dropped and the parties are directed to seek an adjudication from the Civil Court as ordered in the original proceeding. The subject-matter of dispute has already been attached in the aforesaid proceeding and will continue to be settled with the highest bidder periodically until a finding is obtained from the Civil Court. The subject-matter of dispute has already been attached in the aforesaid proceeding and will continue to be settled with the highest bidder periodically until a finding is obtained from the Civil Court. According to the learned Sessions Judge, the previous proceeding under Section 145 of the Code did not relate to the offerings made before the deity in the temple, although the land containing the temple was included within the subject-matter. Ho, therefore, thought that by attachment of the land containing the temple, the offerings to be made to the deity cannot be said to have been under attachment. A dispute with regard to collection of offerings at the temple cannot be said to be in relation to land or water within the meaning of Section 145 of the Code of Criminal Procedure, and, as such, according to him, a proceeding under Sec.147 of the Code of Criminal Procedure is maintainable in respect thereto. He, therefore, recommends that the order passed by the learned Magistrate dropping the proceedings should be set aside. 3. I am afraid, the learned Sessions Judge has committed a mistake in regard to the subject-matter of the proceedings under Sec.145 of the Code of Criminal Procedure relating to the disputed land containing the temple. As I have stated before, a perusal of the order passed under Sections 145 and 146 of the Code of Criminal Procedure in that case would clearly show that the parties claimed possession of the disputed land and went into evidence to show that the possession was by means of appropriation of the offerings made to the deity in the temple. The offerings, therefore, were inter-linked with that dispute. The nature and mode of possession of an immoveable property may differ from case to case; for example, there may be a dispute over a particular stretch of water which may be claimed to be used for irrigation in one case and in another for fishery. Similarly, there can be different uses in respect of particular land. The manner of use is thus very important in the disputes relating to immoveable property which attracts the provisions of Sec.145 of the Code of Criminal Procedure. In the present case, the only kind of use in relation to the particular plot containing the temple was asserted by both the parties to be the appropriation of the offerings made to the deity. In the present case, the only kind of use in relation to the particular plot containing the temple was asserted by both the parties to be the appropriation of the offerings made to the deity. It is not open to a party, after an order has been passed in the proceeding, to initiate another proceeding in regard to the offerings alone and dissociated with the land containing the temple. That will lead to an anomaly. It is conceivable that a party not having a right of entry in the temple may have a share in the offerings made to the deity. In such cases offerings to the deity can be treated independent of the right of possession of the temple or the land, on which the temple stands, in which case, a proceeding under Sec.147 of the Code of Criminal Procedure will be appropriate. But in a case like the present one, in which, the parties claim possession of the land containing the temple by entering noon the land, going I inside the temple worshipping the deity and taking the offerings, the offerings form a proof of possession and is linked with the dispute. 4. Mr. S. Snfdar Imam, learned counsel supporting the reference, drew our attention to the case of Ghulam Sihtain V/s. Mt. Kaniz Khatoon 1 Pat LT 608: (AIR 1920 Pat 383 (1)) in support of his conten-tion, that a dispute with regard to collection of offerings cannot come within the purview of Sec.145 of the Code of Criminal Procedure. In that case the proceedings had been started only in respect of a dispute over the collection of offerings at a particular Karbala. The learned Judge held that such dispute cannot be said to be about land or water, and, therefore, was outside the scope of Sec.145 of the Code of Criminal Procedure. It does not appear from the judgment if the possession of the land connected with that Karbala was in dispute. On the other hand, it is clearly stated there that the dispute was only with regard to the collection of offerings at the Karbala. The case, therefore, does not seem to be applicable to the facts of the present case. 5. On the other hand, it is clearly stated there that the dispute was only with regard to the collection of offerings at the Karbala. The case, therefore, does not seem to be applicable to the facts of the present case. 5. The next case referred to by the learned counsel is Kunjo Mandal V/s. Sarju Ram Marwari, AIR 1939 Pat 206, That was also about the fees collected in respect of boats moored in a shollow channel, dissociated with ownership and possession of the site, where they were moored. An order passed in a proceeding under Section 145 in that case, was challenged, on the ground, that the fees in dispute did not come within the definition of "land or water" in Sub-section (2) of Section 145 of the Code of Criminal Procedure. The channel where the boats were moored, and mooring and other fees levied, lay within the tauzi of the first party, which tauzis themselves lay within the ambit of the mauza Ghosai forming a tauzi, on the strength of the title to which, the second party asserted that they were collecting the fees. The learned Judge observed that the fees were thus dissociated from the ownership of the site, and was of the view that it may be that they were not included within the expression "land or water" as used in Sub-section (1) of Sec.145 and explained in Sub-sections (2) of that section, but he held that, that would be no reason for setting aside the order passed under Sec.145 because, according to him, "Where Sec.145 does not apply, Sec.147 may, and proceedings under the latter section are carried on in the same manner as proceedings under the former." On that ground, the order passed under Sec.145 was not interfered with. This case, I am afraid, will not help the contention of the learned counsel, because the dispute over the collection of the fees was the primary dispute between the parties and not the possession of the water channel where the boats were being moored. The collection of fees was not set up in that case as a mode of possession of the water channel. 6. The other case cited by the learned counsel is Ram Saran Pattak V/s. Raghu Nandan Gir, 9 Ind Cas 6 (Cal) which may be said to be in support of his contention to some extent. The collection of fees was not set up in that case as a mode of possession of the water channel. 6. The other case cited by the learned counsel is Ram Saran Pattak V/s. Raghu Nandan Gir, 9 Ind Cas 6 (Cal) which may be said to be in support of his contention to some extent. In that case, the dispute was about the offerings given by the worshippers for the worship of a deity and they were not held as profits arising out of a building as they arose out of the deity, irrespective of the building or the land, upon which it stood. It was, therefore, held that the provisions of Sec.145 were not attracted to the case. The first party complained that he was interfered with in his Puja of the deity, whose hereditary Pujari he was, by the second party who, also, obstructed him in the realisation of offerings to the deity offered by the pilgrims. The second party said that he was the sole proprietor of the temple and the deity, and, therefore, was entitled to the sole and exclusive possession of the temple with deity and the offerings. Before the High Court, it was conceded that the declaration of possession of the temple and the land on which it stood, under Sec.145 of the Code of Criminal Procedure was within the jurisdiction of the Court, but an objection was raised about the declaration that one of the parties was in possession of the offerings. Their Lordships of the Calcutta High Court observed as follows : "It appears clear to us that the offerings given by the worshippers for the worship of any deity are not profits arising out of a building. ..... The offerings arise out of the deity irrespective of the building or the land upon which he may happen to dwell. To hold otherwise could be to allow the Criminal Courts to interfere with the Customary law of this country. There are certain rules differing in various sects and in various districts as to the apportionment of the offerings between the ground landlord, the actual holder of the temple, the middlemen and the Pujari, and the sums which are devoted to the upkeep of the temple. There are certain rules differing in various sects and in various districts as to the apportionment of the offerings between the ground landlord, the actual holder of the temple, the middlemen and the Pujari, and the sums which are devoted to the upkeep of the temple. Now it is quite impossible for the Criminal Courts to go into these matters, and it is quite impossible to say that the whole of these offerings belongs to the ground landlord, Middleman, pujari or to the endowment. This matter, which depends entirely upon custom and sometimes upon an ancient grant or other documents, can only be adjudicated upon by a competent Civil Court." Their Lordships followed an earlier decision of that Court in Gui Ram Ghoshal V/s. Lal Behary Das, 6 Ind Cas 182 (Cal), in which the learned Judges had observed : "Considering also the scope of Sec.145, Criminal Procedure Code, we think that the present dispute (which was the right to perform the duties of a pujari) is certainly not one which was intended that the section should cover." That case 6 Ind Cas 182 (Cal) arose out of a proceeding under Sec.147, Criminal Procedure Code. The learned Judges considered that case in support of their contention as the procedure prescribed for both the proceedings under Sections 145 and 147 was the same. Their Lordships observed : "But when it comes to the question of the offerings being disputed and not the house or the land, it is clear that the dispute is about movable property and it is now settled law that Sec.145. Criminal Procedure Code, has no concern with movable property." It thus appears that the observations of their Lordships of the Calcutta High Court in that case were confined to a dispute over the offerings only. It is true that in the proceedings under Sec.145 of the Code of Criminal Procedure which gave rise to this decision, was involved the dispute about the possession of the temple and the land also. Mr. Safdar Imam is justified in contending that the proceedings under Sec.145, earlier to the proceedings under Sec.147, with which we are now concerned, were not competent as far as the dispute about the offerings to the deity was concerned. Mr. Safdar Imam is justified in contending that the proceedings under Sec.145, earlier to the proceedings under Sec.147, with which we are now concerned, were not competent as far as the dispute about the offerings to the deity was concerned. But this will be of no real assistance to him in the present controversy as he has not come against the order passed under Sec.145 or Sec.146 of the Code of Criminal Procedure in those proceedings. We are now concerned with, if the orders passed in the proceeding under Sec.147 of the Code of Criminal Procedure, by the learned Magistrate, was correct. Rightly or wrongly, in the order passed in the earlier proceedings started under Sec.145 of the Code of Criminal Procedure, the learned Magistrate had included the offerings as a part of the dispute and had referred that to the Civil Court under Sec.140 of the Code of Criminal Procedure along with the question of possession of the land. That will be taken to be final as it was not sought to be challenged in an appropriate case before this Court, within the prescribed time. We have no such prayer before as even at this stage. The learned Magistrate was therefore, right in saying that the subject-matter of the dispute which had been raised in the proceeding before him under Sec.147 of the Code of Criminal Procedure, having formed a part of the earlier proceeding, cannot be agitated again. 7. In this connection, it will be helpful to refer to case, Ramroop Mahton V/s. Mano Mian, AIR 1934 Pat 86. That case arose out of a proceeding under Section 145 of the Code of Criminal Procedure. The first party were the owners of two revenue paying villages, and the second party claimed a jalkar right in certain sheets of water in those two villages. A proceeding under Sec.144 of the Code of Criminal Procedure was at first started but it was subsequently converted into a proceeding under Sec.147 of the Code. Finally, the order of the learned Magistrate was in favour of the second party prohibiting the first party to interfere with the right to fish by the second party. A proceeding under Sec.144 of the Code of Criminal Procedure was at first started but it was subsequently converted into a proceeding under Sec.147 of the Code. Finally, the order of the learned Magistrate was in favour of the second party prohibiting the first party to interfere with the right to fish by the second party. The case first came in revision before a single Judge of this Court and was later referred to a Division Bench in order that there may be an authoritative decision whether the proceeding should have been under Sec.147 or under Sec.145 of the Code of Criminal Procedure. Their Lordships in the Division Bench considered the matter and discussed the difference between the provisions under Sections 145 and 147 of the Code of Criminal Procedure. In proceeding under Sec.145 of the Code of Criminal Procedure, the Court without reference to the merits of the claim of any of the parties to a right to possess the subject of a dispute, is only to decide whether any or which of the parties at the relevant time is in possession of immoveable property; but in a proceeding under Sec.147 of the Code, the Court has to come to a finding whether the right claimed by the parties of user of any land or water does exist, and after coming to a finding that such a right exists, he has to find further whether any of the parties has been exercising that right within three months of the date of the proceeding, or where the right is exercisable only at particular seasons or at particular occasions, whether such right had been exercised during the last of such seasons or the last of such occasions, before the institution of the proceedings under Sec.147 of the Code of Criminal Procedure. Their Lordships observed in that ease : "It is clear therefore that the subject-matter of a proceeding under Section 147 may also be fisheries to which one of the parties may have a right apart from any right to the land upon which the fishery stands. The subject-matter of the proceeding under Sec.145, if it relates to fisheries, must relate to the particular local area, where the fishery extends. The subject-matter of the proceeding under Sec.145, if it relates to fisheries, must relate to the particular local area, where the fishery extends. The difference therefore is that, in the one case, that is in the case of Sec.147, the right may be a prescriptive right or right of easement to use water or land not belonging to the parties but belonging to somebody else which has to be considered In the present case the right claimed by the second party is the right to catch fish in waters upon the land of the first party. It is therefore in the nature of an easement or profits a prendre and therefore the proceeding clearly came within the ambit of Sec.147, Criminal Procedure Code." This case supports the contention that a dispute solely over the right to offerings made to a deity without any claim of possession of or right of entry to the land or the temple standing thereon, may form the subject-matter in a proceeding under Sec.147. The facts of the present case before us are different. The parties had claimed that they were in possession of the land and the temple and they have been referred to the Civil Court to obtain a competent adjudication from there. It cannot, therefore, be said that this is a case in which the parties only claimed the right to the offerings to the deity installed in a temple, situated on the land not belonging to them, or not in their possession. 8 I am, therefore, of the view that the learned Magistrate has rightly dropped the proceedings before him under Sec.147 of the Code of Criminal Procedure and the reasons given by him justified the same. 9. The reference is, therefore, discharged and the orders passed by the learned Magistrate are affirmed. Kanhaiya Singh, J. 10 I agree.