1. The dispute between the parties in this case' is regarding the rights of respondents to lay their warps in a certain street in their village, petitioners claiming the exclusive right to do so and respondents alleging that they are entitled also. The lower Court, holding what it refers to as joint user established, has, under Section 140 of the Code of Criminal Procedure, forbidden petitioners to interfere with the joint enjoyment of the street by respondents in the manner in question.
2. Petitioners have objected to this order on the ground that it was passed after admissible evidence, oral and documentary, had been excluded. But the view I take involves consideration only of two more substantial objections that (1) Sections 145 and 146 authorise no recognition of joint possession, (2) the lower Court did not decide, as the former section directs, which party was in possession on 23rd June 1917, the date of the preliminary order. The first of these objections is justified by the description in the sections of the different orders which can be passed and by reference to authority, the latest case being Veerabhadra Pillai v. Shunmugam Pillai 32 Ind. Cas. 668 : 17 Cri.L.J. 76 see also Dharavi Kanta Lahiry Chowdhury v. Girija Kanta Lahiry Chowdhury 8 C.W.N. 485 : 1 Cri.L.J. 367 and Makhan Lal Roy v. Barada Kanta Roy 11 C.W.N. 5129 The second is based on the contention which is consistent apparently (for the lower Court has not dealt with the point) with petitioners' petition of 3rd February 1917 and respondents' evidence that the latter were prevented from laying warps on 1st February 1917 and did not do so subsequently and, therefore, if possession was in question, had none either at the date of the preliminary order or within the two months preceding it referred to in the proviso to Section 145. If this contention had been established it would have entitled petitioners to succeed, if an order under Section 145 of the Code of Criminal Procedure had been appropriate, and such an order passed, in disregard of this fact cannot be sustained. That the first of these objections to the lower Court's order is .available is, however, entailed by the fact that it made a fundamental mistake in attempting to apply Section 145 at all. On that account its order must be set aside.
3. The right to lay warps in a street is clearly, as respondents argue here and as petitioners contended in their review petition to the lower Court of September 1917, not a right to possession of land but a right to the use of it such as Section 147 of the Code of Criminal Procedure deals with, and the lower Court should have proceeded under that section. If it had done so, it would have avoided not only the legally inadmissible recognition of joint possession, but also the use of terms 'joint user', and 'joint enjoyment' in its judgment and final order, to which it is impossible to attach any definite significance. For it cannot be said that A who lays his warps on the one part of the street and B who lays his on another are using or enjoying the ground jointly, on the sole ground that they do so similarly and simultaneously. The lower Court may now find, and it will be admissible for it to consider before passing an order, that this user is regulated by custom or otherwise, if only to the extent that priority of occupation on any particular day is respected and if such regulation is established, it may do well to frame its order accordingly. It, will, in any case, have to consider whether the right alleged by either side is sustainable with reference to the period prescribed in the proviso to the section. If it is not, no order recognising that side's user can be passed.
4. The lower Court's order is set aside and the petition is remanded to it for re-hearing in the light of the foregoing, after it has passed a preliminary order under Section 147. At the enquiry to be held it will take evidence de novo, including that alleged to have been excluded improperly, if it is otherwise admissible, Costs to date here and before the lower Court will be costs in the case and will be provided for in the final order passed. Fee on each side in this Court is Rs. 25.