JUDGMENT : K.B. Panda, J. - The Petitioners, six in number, were the members of the second party in a 147, Code of Criminal Procedure proceeding. As per the impugned order "there was a dispute between the Petitioners and one Jayakrishna Mahanta, the first party member, that gave rise to apprehension of breach of peace regarding an alleged right to rear and catch fish in the tank measuring 4.17 acres comprising plot Nos. 2010, 204 and 202 of village Barapada in ex-State Keonjhar." 2. The case of the first party was that the tank in question belonged to Government which has been transferred to Jyotipur Gram Panchayat and as such it is under the control and management of the Gram Panchayat that rear and catches fish and appropriates the income. Previously Purusottam Mahanta (Petitioner No. 3), Achuta Mahanta and Gambhir Mahanta and others had taken fishery lease of the tank. For the years 1970-71, 1971-72 and 1972-73. It is the first party, namely, Jayakrishna Mahanta who had taken lease on highest bid from the Grama Panchayat and had reared fish. On 4-4-72 the Petitioners - second party members forcibly caught fish for which information was lodged at Basia P.S. and a case u/s 379, Indian Penal Code was started against them. That case ended in acquittal of the second party Petitioners. The case of the second party-Petitioners is that the ancestors of Rama Chandra Mahanta, father of Petitioner Nos. 1, 2 and 3, excavated the tank a century back (prior to 1322 Amli during the Raja's regime out of their own family funds for the purpose of (sic) and bathing. They also use to maintain the tank. Rama Chandra Mahanta also maintained the same and spent a lot of money in renovating it. He did major repair work taking permission and Patta that was granted in his favour in B.T. lease No. 11 of 1938 in which the tank in question was settled with him till the next settlement with assessment of yearly rent. During the lifetime of Rama Chandra he was rearing fish and appropriating the same exclusively on payment of rent till his death and thereafter his sons are also maintaining it and catching fish on payment of annual rent. During the lifetime of Rama Chandra he was rearing fish and appropriating the same exclusively on payment of rent till his death and thereafter his sons are also maintaining it and catching fish on payment of annual rent. In 1968, the Sarpanch of Jyotipur Gram Panchayat attempted to interfere with their possession with the help of some villagers but they were thwarted, in consequence of which G.R. Case No. 322 of 1968 was started against some of the Petitioners u/s 353/342, Indian Penal Code and in that they were acquitted. Thereafter Sibananda Mahanta, Narahari Mahanta and 8 others of village Barapada at the instigation of the Sara panch and the Secretary of the Grarna Panchayat started Misc. Case No. 5 of 1972 in the Court of Tahasildar, Champua to take water from the Bandh to irrigate their lands obviously with the purpose to interfere with the possession of second party but their prayer was turned down by the Tahasildar and the possession and title of the Petitioners were maintained. Thereafter this first party who was a party in the Misc. Case No. 5/72 initiated this 147 Code of Criminal Procedure proceeding. It is specifically asserted that none excepting the second party repaired the tank, caught fish there and none else far less the first party had any right over the same. The learned lower Court has (sic) the dispute thus: It goes admitted in this case that the right of the first (sic) to rear and catch fish in the tank in question is derived from the lease he took in auction held by the Jyotipur Grama Panchayat for the years 1970-71, 1971-72 and 1972-73. Therefore it is to be seen who had such right of user whether the panchayat of Jyotipur or the second party members. While dealing with the claim of the second party the learned lower Court has observed thus: Although the second party members have filed the documents Exts. 'B' and 'C' in support of their claim to its title and fishing in the same, it would be found that no such right or title over the same was bestowed through the said documents. Exts. 'B' contains the orders permitting Rama Chandra Mananta the father of the O. Ps. 'B' and 'C' in support of their claim to its title and fishing in the same, it would be found that no such right or title over the same was bestowed through the said documents. Exts. 'B' contains the orders permitting Rama Chandra Mananta the father of the O. Ps. for ten years from the year 1347 or till the next settlement, to renovate the tank in question at the orders that its water would be used by the villagers as before and in that the said Rama Chandra Mahanta would not obstruct them and rent for the same was assessed at Rs. 7-3-9 paise. These orders were passed in 1939. This shows that the said Rama Chandra Mahanta had applied for permission to renovate the tank and it was allowed as stated therein till next ten years or the next settlement. The tank was there from before and it was and is a public tank as would appear from the condition attached. There is no mention of vesting of any right on Rama Chandra Mahanta in respect of the said tank while much less there is anything to show about any permission given to rear and catch fish therein. It however goes to indicate that Rama' Chandra Mahanta perhaps needed more water to store therein to irrigate his own lands and so he prayed for permission to renovate the same and for that the rent was assessed, without interfering with the right of the general public to use its water. These documents i.e. the permission Ext. B and the patta Ext. C therefore go rather to show that the tank was and is owned by the Government and never its title or possession was alienated in favour of the said Rama Chandra Mahanta. However, the O.Ps. might claim their ownership and possession though the judgment given by the learned S.D.M. (Judl.) in G R. Case No. 322 of,1968 and the orders of the Tahasildar passed in Misc. Case No. 5 of 1972 and the rent receipt Exts. D to D(4) but it is as clear as any thing that no right or title was created in the above stated two documents of 1939 for the said Rama Chandra Mahanta. Much less there is any thing to snow that he derived through the same any right to rear and catch fish.... D to D(4) but it is as clear as any thing that no right or title was created in the above stated two documents of 1939 for the said Rama Chandra Mahanta. Much less there is any thing to snow that he derived through the same any right to rear and catch fish.... These discussions clearly show that the Petitioners not only claim a right of fishing but they claim the same as owners of the tank. Right of fishing is only an incident of the bigger right of ownership including title and possession over the disputed tank. The first party was claiming merely a right of fishing on the basis of a lease granted by Jyotipur Grama Pancnayat. It follows therefore that the first party had no independent right but it derived its right from the Grama Panchayat in, question the lessor. Unless the Grama Panchayat itself had that night, obviously it cannot transfer any such right to the first party. Secondly, the main dispute was between the second party-Petitioners and the Grama Panchayat regarding possession of the tank which included the benefit of fishing right therein. In this proceeding the Grama Panchayat is not a party but by declaring the right of fishing in favour of the first party the learned lower Court has virtually decided the fishing right to be resting with the Panchayat. It was open to the Panchayat (Jyotipur), the lessor, to become a party or it was open to the trying Magistrate in (sic) of the case to make the Panchayat a party so as to adjudicate the matter finally in presence of all the concerned parties; but evidently it has not been done. 3. Mr. Mohanty's (learned Counsel for the Petitioners) main contention was that in the facts and circumstances of the case, Section 147, Code of Criminal Procedure proceeding is not contemplated but one u/s 145, Code of Criminal Procedure. In elaborating this contention he stated that here both the parties were not asserting a right of user over any immoveable property. But the second party was claiming ownership and possession over the tank whereas the first party was only advancing a claim of fishery right for certain years through the Grama Panchayat and not under the Petitioners-second party. In elaborating this contention he stated that here both the parties were not asserting a right of user over any immoveable property. But the second party was claiming ownership and possession over the tank whereas the first party was only advancing a claim of fishery right for certain years through the Grama Panchayat and not under the Petitioners-second party. Thus it turns out to be a claim over immoveable property, the tank, by the second party coming directly u/s 145, Code of Criminal Procedure. The first party claimed a fishery right only. u/s 147, Code of Criminal Procedure, as in this case, there is no question of attachment since an intangible right of user cannot be attached which is an essential feature in a proceeding u/s 145 Code of Criminal Procedure. It is clear also from the record that there has been no attachment of anything in this proceeding. Virtually, therefore, the dispute, if any, was regarding possession of the tank in question that lingered between the Petitioners on the one hand and the Panchayat on the other. The Panchayat knowing fully well of this dispute did not try to become a party to the proceeding. In this setting. I think, there is enough force in the contention of Mr. Mohanty that a proceeding u/s 147, Code of Criminal Procedure is not an appropriate proceeding. Mr. Mohanty in support of his contention has relied on several decisions such as Raghunath Behera and Ors. v. Purna Chandra Mahanta and 20 Ors. 32 (1966) C.L.T. 256 Uchhaba Chandra Das v. Khirod Chandra Das 1971 (2) C.W.R. 974 Smt. Bhubaneswari Goswami Vs. Kaliram Burman Raja Braja Sunder Deb and Anr. v. Moni Behera and Ors. 17 (1951) C.L.T. 252, Ramroop Mahton and Others Vs. Mano Mian and Others, and Kali Kissen Tagore v. Anund Chunder Roy ILR Cat. 557, Mr. Mohanty, appearing on behalf of the first party, also relied on Ramroop Mahton and Others Vs. Mano Mian and Others and endeavored to bring about a distinction between the case law reported in Smt. Bhubaneswari Goswami Vs. Kaliram Burman, and the present one. It is unnecessary to refer to all the citations excepting a few which I think are directly on the point. It is not disputed that as held by their Lordships of the Supreme Court in Raja Braja Sundar Deb v. Moni Behera and Ors. Kaliram Burman, and the present one. It is unnecessary to refer to all the citations excepting a few which I think are directly on the point. It is not disputed that as held by their Lordships of the Supreme Court in Raja Braja Sundar Deb v. Moni Behera and Ors. 17 (1951) C.L.T. 252, fishery can be the subject matter of a proceeding u/s 147, Code of Criminal Procedure. There is also no dispute that Section 147 of the Code of Criminal Procedure includes Jalkar right and a Magistrate is competent to take action under that section in the case of a dispute concerning the exercise Jalkar right Kali Kissen Tagore v. Anund Chunder Roy ILR Cat. 557. In Srimati Bhubaneswari Goswami v. Kaliram Burman 1971 (2) C.W.R. 974, distinction between Sections 145 and 147, Code of Criminal Procedure has been clearly brought out. It is said there thus: Section 145, Code of Criminal Procedure deals with cases where there is a dispute with regard to the land itself likely to result in breach of peace, whereas Section 147, Code of Criminal Procedure deals with cases where there is a dispute with regard to a right in or over the land. If the right to use the land is claimed as an incident of ownership and it is alleged that a dispute has arisen as regards such user, it will really be a dispute relating to the land itself, and not in respect of a right in the land. x x x If the right to use the land is claimed as an incident of ownership and it is called that a dispute has arisen as regards such user. It will really be a dispute relating to the land itself, and not in respect of a right in the land. The Petitioner was claiming that the land belonged to him. He may have been using it in a particular manner, namely, by utilising it as a passage for the purpose of repairing his house. But there was no legal bar to his using it otherwise than as a passage. He could have, according to his claim, used the land in any manner he liked. He may have been using it in a particular manner, namely, by utilising it as a passage for the purpose of repairing his house. But there was no legal bar to his using it otherwise than as a passage. He could have, according to his claim, used the land in any manner he liked. So he was not really claiming merely a right of user in the land but a right of ownership, or In other words, it can be said that he was using the land as he was the owner of the land, and not in the exercise of any limited right of user. The use of the word 'otherwise' only extends the operation of the section to cases where a person may not have, strictly speaking, a right of easement, but he may acquire the right of user by grant or by custom. But nonetheless it has to be a right distinct from the use of the land as an owner. In Ramroop Mahton and Others Vs. Mano Mian and Others it is said: The Subject-matter of a proceeding u/s 147, may 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 u/s 145, if it relates to fisheries, must relate to the particular local area where the fishery extends. The difference therefore is that in Section 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. Where therefore the right claimed by the second party is the right to catch fish in waters upon the land of the first party, it is in the nature of an easement or profits a (sic) and therefore the proceeding clearly comes within the ambit of Section 147. The case of Raghunath Behera and Ors. v. Purna Chandra Mahanta and 20 Ors. 32 (1966) C.L.T. 256 is a parallel case coming from that area and I think it will throw enough light on the merits of this case. There the Petitioners were members of the first party in a 145, Code of Criminal Procedure proceeding. The dispute was over the possession of a tank in the district of Keonjhar as the present one. There the Petitioners were members of the first party in a 145, Code of Criminal Procedure proceeding. The dispute was over the possession of a tank in the district of Keonjhar as the present one. Those plots stood recorded In the name of Government. The first party-Petitioners there alleged that their forefathers excavated the tank at their own expenses and that they were in possession of that tank for about a century. There were about 60 acres of cultivable lands surrounding that which were irritable by its waters and they claimed fishery right in it. In their written statement they stated that some time in 1942, the Ex-State of Keonjhar recorded their rights in it. Without any semblance of right the second party members wanted to create disturbance in their possession and accordingly that 145, Code of Criminal Procedure proceeding was initiated. The second party members were mostly villagers of (sic). They alleged that the disputed tank belonged to the State which had transferred the same to the Kapundi Gram Panchayat. From 1961 onwards the fishery right of the tank is being put to auction sale by the Panchayat and the money so realised is deposited in the Panchayat fund. While disposing of the case, the learned Judge observed thus: The contention of the first party that though the tank stands on lands recorded in the name of the State, they exercised rights of possession by spending money over excavation and maintenance, is not wholly frivolous. Such a system was prevalent in most of the ex-State areas. Reference to para 33 of the Report on Land Tenures and the Revenue System of the Orissa and Chhatisgarh States by Ramadhyani, Volume I would show the existence of this system. The last line of that para is to the effect: Tanks constructed by villagers seem to have been recorded as State tanks in some places. In that case the Magistrate declared the possession of Kapundi Grama Panchayat that which upset on the following grounds: The Panchayat is not a party to the proceeding u/s 145, Code of Criminal Procedure though its Secretary happens to be one of the members of the second party as being one of the villagers. The Panchayat not being a party to the said proceeding, it was illegal on the part of the learned Magistrate to declare possession in its favour. The Panchayat not being a party to the said proceeding, it was illegal on the part of the learned Magistrate to declare possession in its favour. The facts of that case and the instant case are almost identical. In that case, however, the redeeming feature was that the proceeding was u/s 145, Code of Criminal Procedure. Even then in the absence of the Gram Panchayat the order of the Magistrate declaring possession in favour of the Panchayat was turned down. 5. In the instant case the position is still worse. Here the second party asserts title, ownership and possession of which fishery right is just incidental. The first party does not claim a right of fishery by easement or custom otherwise admitting the ownership of the second party. But the first party claims through the Gram Panchayat, so admits of possession and ownership not with the, second party but a third party who is not before the Court. Thus the dispute is really between two rival parties who claim ownership and possession, namely, the second party on the one hand and the Jyotipur Gram Panchayat on the other. By declaring the fishery right of the first party the Magistrate virtually declares the possession and ownership in favour of the Jyotipur Gram Panchayat who is not a party to the proceeding. Even if it were a party then there would have been in dispute regarding the possession of immovable property and in that case the appropriate proceeding is a 145, Code of Criminal Procedure proceeding. Thus in any view of the matter, I am satisfied that the present 147 Code of Criminal Procedure proceeding is misconceived and as such the order is set aside. If really there is any likelihood of bleach of peace in respect of possession of the Immovable property and tank in question, it is open to the authorities concerned to take appropriate steps u/s 145, Code of Criminal Procedure or leave the parties to determine their right in the Civil Court. 6. The petition is allowed and the order in favour of the first party is set aside. It may be mentioned here that the first party was only granted lease till 1972-73 which has expired. The order was passed in August, 1973 though the dispute arose some time on 4-4-1972. 6. The petition is allowed and the order in favour of the first party is set aside. It may be mentioned here that the first party was only granted lease till 1972-73 which has expired. The order was passed in August, 1973 though the dispute arose some time on 4-4-1972. Since I have held the proceeding u/s 147, Code of Criminal Procedure is uncalled for, in the circumstances, the operative portion of the order, which runs thus: It is therefore ordered that there be no interference to the exercise of such right by the first party for the period the has the authority from the Gram Panchayat or if not prevented by orders of a Competent Court is vacated. The petition is allowed and the impugned order is set aside. Final Result : Allowed