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Velappa Goundan and ors. Vs. Ramaswami Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1938)1MLJ817
AppellantVelappa Goundan and ors.
RespondentRamaswami Goundan and ors.
Cases ReferredPalaniyandi Pandaram v. Palaniappa Thevan
Excerpt:
- - the present section however clearly incorporates the definition of land given in section 145, sub-section (2) into section 147 according to which land includes buildings. 651. i think on the whole, though not without hesitation, that the better view is the view that has been adopted consistently in this high court with the exception of the case reported in palaniyandi pandaram v. it also appears to me that the policy of the legislature has been consistently, in the past, to enlarge the jurisdiction of the magistrate in respect of disputes connected with any kind of user of 'land' in its widest sense, and that it would be inconvenient if disputes which are clearly inseparably connected with lands, or buildings were beyond the jurisdiction of the magistrate......the amendment of section 147 in 1923 by act xviii of 1923 has the result of giving effect to the madras view as is seen from the following passage : 'there was a conflict of opinion between the madras and calcutta high courts: see kader batcha v. kader batcha rowthan i.l.r.(1905) 29 mad. 237 in opposition to guiram ghosal v. lal behari das i.l.r.(1910) 37 cal. 578. this conflict was, however, set at rest by act no. 18 of 1923 amending the criminal procedure code wherein the view of the madras high court was adopted. originally the words were:a right of use of any land or water including any right of way or other easement over the same. these words indicated to the calcutta high courts certain rights which were confined to rights of easement and similar rights. in the amended section,.....
Judgment:
ORDER

Pandrang Row, J.

1. The petitioners seek to revise the order of the Sub-divisional Magistrate of Gobichettipalayam, dated 31st March, 1937, declaring under Section 147 of the Code of Criminal Procedure that one Kamandi is the only pujari of the temple of Mariamman in Nallikavandanur who has the right to perform puja in that temple and forbidding all interference, with the exercise of that right. The only ground of attack on the order is that the Magistrate had no jurisdiction or, in other words, that the dispute about the right to worship as pujari in the temple is not a dispute which comes within the provisions of Section 147 of the Code of Criminal Procedure. It would appear that there was a dispute also about the management of the temple itself, but the learned Magistrate says that that was not the dispute regarding which he took action though the right of appointment as pujari is vested in the person or persons in whom the management vests. The simple point therefore that arises for decision is whether the dispute regarding the right to worship as pujari in a temple is a dispute regarding any alleged right of user of any land as explained in. Section 145, Sub-section 2. There is no doubt that there is a divergence of opinion, between the Calcutta High Court and this High Court. This divergence has been recognised in more than one reported case. The Calcutta decisions are Guiram Ghosal v. LalBehari Das I.L.R.(1910) 37 Cal. 578, Ram Saran Pathak v. Raghu Nandan Gir I.L.R.(1910) 38 Cal. 387 and Surendra Nath Banerjee v. Shashi Bhushan Sarkar I.L.R.(1925) 52 Cal. 959. The Madras decisions are Muhammad Musaliar v. Kunji Chek Musaliar I.L.R.(1887) 11 Mad. 323 Kader Batcha v. Kader Batcha Rowthan I.L.R.(1905) 29 Mad. 237 Chidambara Gurukkal v. Sengoda Goundan : AIR1915Mad84 and Sinnaswami Chetti v. Palani Goundan (1924) 48 M.L.J. 528. There is another Madras decision, namely, Palaniyandi Pandaram v. Palaniappa Thevan (1915) 34 I.C. 651 in which Ayling, J., doubted the correctness of the earlier Madras decisions. In Daya Ram v. Emperori : AIR1930All452 , it was held that the amendment of Section 147 in 1923 by Act XVIII of 1923 has the result of giving effect to the Madras view as is seen from the following passage : 'There was a conflict of opinion between the Madras and Calcutta High Courts: see Kader Batcha v. Kader Batcha Rowthan I.L.R.(1905) 29 Mad. 237 in opposition to Guiram Ghosal v. Lal Behari Das I.L.R.(1910) 37 Cal. 578. This conflict was, however, set at rest by Act No. 18 of 1923 amending the Criminal Procedure Code wherein the view of the Madras High Court was adopted. Originally the words were:

A right of use of any land or water including any right of way or other easement over the same. These words indicated to the Calcutta High Courts certain rights which were confined to rights of easement and similar rights. In the amended section, the wider view of the Madras High Court was adopted and it was specifically noted that the provisions of that section would a] ply whether such right be claimed as an easement or otherwise.

2. It was held in this Allahabad case that after the amendment of the Code no doubt remained as to the provisions of that section attaching to disputes as regards' entry into a temple or mosque. Ram Saran Pathak v. Raghu Nandan Gir I.L.R.(1910) 38 Cal. 387 does not apply to the present case because that dealt with a dispute about offerings, that is to say, about movable property. There can be no doubt that a dispute which relates to offerings cannot be regarded as a dispute about the user of any land or building. The decision in Guiram Ghosal v. Lal Behari Das I.L.R.(1910) 37 Cal. 578 is a direct decision on the point that a dispute concerning merely the right to act as a pujari in a temple is not within the scope of Section 147, Criminal Procedure Code. One of the grounds on which that decision is based was that the expression 'land' is not defined in the Code of Criminal Procedure, and that for the purposes of the somewhat analogous provisions of Section 145 it is not referred to as necessarily including buildings. The present section however clearly incorporates the definition of land given in Section 145, Sub-section (2) into Section 147 according to which land includes buildings. The other ground was that though it is impossible to perform the duties of a pujari without entering upon the land on which the temple is built, it is the worship which is disputed and not the use-of the land. This view commended itself to Ayling, J., in Palaniyandi Pandaram v. Palaniappa Tkevan (1915) 34 I.C. 651. I think on the whole, though not without hesitation, that the better view is the view that has been adopted consistently in this High Court with the exception of the case reported in Palaniyandi Pandaram v. Palaniappa Thevan (1915) 34 I.C. 651. It seems to me that where the dispute is regarding a right which is inseparably connected with the use of any land or building it must be regarded as being within the purview of Section 147. It may be that the dispute in actual fact may have more to do with what a man does in the temple after entering into it and not so much with his actual entry into the temple nevertheless where the right regarding which a dispute exists is one which is inseparably connected with the right to enter a building and cannot be dissociated from it the dispute cannot be said to be not one regarding an alleged right t of user of the building. In this particular case it would appear that the dispute was also concerned with the right of possession of a particular room kept locked in the temple in which the puja materials are kept. The possession of this locked room is inseparably connected with the right to worship as pujari, for without these materials which are kept therein it is not possible for anyone to perform puja as pujari. It would therefore appear that the present dispute includes a dispute regarding the possession, of the locked room in which these paraphernalia of worship are restored. It also appears to me that the policy of the legislature has been consistently, in the past, to enlarge the jurisdiction of the Magistrate in respect of disputes connected with any kind of user of 'land' in its widest sense, and that it would be inconvenient if disputes which are clearly inseparably connected with lands, or buildings were beyond the jurisdiction of the Magistrate. On the whole, therefore, I am inclined to the view that the Magistrate had jurisdiction to deal with the present dispute and that his order cannot therefore be regarded as being void for want of jurisdiction. The petition therefore fails and is dismissed.


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