Prinsep and Ameer Ali, JJ.
1. A rule was granted by a Bench of this Court requiring the Maharaja of Durbhunga to show cause why an order passed under Section 145 of the Code of Criminal Procedure should not be set aside--first, on the ground that section was not applicable to the subject of the dispute between the contending parties, and, secondly, on the ground that the Court had no jurisdiction to make the order under Section 145. Proceedings under that section were instituted by the District Magistrate of Purneah in consequence of a dispute between the Maharajas of Durbhunga and Sonbarsa which, he found, was likely to cause a breach of the peace, arising out of claims to use certain land for the purposes of a private ferry; and the objection taken, on which that rule was granted, may be shortly stated to be that a claim to a ferry is not cognizable under Section 145 of the Code of Criminal Procedure, the Magistrate's action, therefore, being without jurisdiction, and that consequently the proceedings should be set aside under Section 15 of the Charter Act, irrespective of the Code of Criminal Procedure, which, as expressed by Section 435 of the Code of 1898, ordinarily bars the exercise of revisional powers by this Court. The subject-matter of dispute is said to be on the boundary of the districts of Bhaugulpore and Purneah, and we find that, in the earlier part of this year, and before the Criminal Code of 1898 became law, proceedings under Section 145 of the Code of 1882 were instituted by a Magistrate of the District of Bhaugulpore, and an order passed in favour of the Maharaja of Durbhunga was set aside by a Bench of this Court as a Court of Revision, on the ground that the dispute regarding possession of a ferry was not a dispute regarding tangible immoveable property within the terms of Section 145 of the Code of 1882. The Court at the same time expressed an opinion that questions relating to disputes regarding ferries were intended to come within the scope of Section 147. The Court also held that the order under Section 145 was bad on the ground that on the affidavit of the Maharaja of Sonbarsa, which was not contradicted, the land on both banks was outside the jurisdiction of the Magistrate of Bhaugulpore, and that, therefore, he had no jurisdiction to deal with the matter. An application was subsequently made to this Court for a correction of this finding as erroneous as a statement of fact. It was then held by the Court that it had no power to reconsider the order, even if erroneous, and that the point was immaterial, since the finding of the Magistrate was to the same effect, so that in either case the Magistrate had no jurisdiction. The present proceedings have been taken in Purneah under the Code of 1898, and Section 145 of that Code has been amended, in so far that it has been differently expressed in some respects from the corresponding section of the former Code of 1882. It does not limit the action of the Magistrate to disputes relating to the possession of 'tangible immoveable property,' but it empowers him to take cognizance of disputes likely to cause a breach of the peace 'concerning any land or water or the boundaries thereof,' and it gives an explanation of the meaning of the expression 'land or water.'
2. We have consequently now to consider whether this dispute falls within Section 145 of the Code of 1898. But Mr. Woodroffe, who appears against the rule for the Maharaja of Durbhunga, contends that, by reason of the terms of Section 435 of the Code of 1898 in amendment of the former law, this Court has no jurisdiction as a Court of Revision, or even under Section 15 of the Charter Act, inasmuch as Section 435 as amended removes any power that this Court may have had under the latter. Mr. Woodroffe relies on the well-known case of Queen v. Burah (1878) L.R., 5 I.A., 178:I.L.R., 4Cal., 172, in which it was held that the local Legislature had power to overrule a statutory power conferred on this Court, and he contends that this was the object and result of the legislation expressed in Section 435 of the Code of 1898. Of the power of the local Legislature we have no doubt, but we do not agree that the power has been exercised as contended by Mr. Woodroffe, or that the terms of Section 435 must be so understood. Matters under Chapter XII of the Code, that is, under Section 145, such as the case now before us, are by Section 435 placed in the same category as orders under Section 143 and Section 144, in respect of which Section 435 of the Code of 1898 is expressed in the same terms as in the same section of the Code of 1882; and in regard to an order under Section 143 or Section 144, it has been held in many cases, so as to h ave become settled law, that though powers as a Court of Revision under the Code cannot be exercised, still, if an order challenged be without jurisdiction, that is to say, if it be outside those sections, the mere fact of the order purporting to be so passed would not bring it within those sections, so as to debar the exercise of powers under Section 15 of the Charter Act to set it aside as null and void and without jurisdiction. The terms of Section 435 have, in this respect, been held to mean that an order must have been passed under the exempted sections with jurisdiction. As the most recent cases on this subject, we need only refer to Abayeswari Debt v. Sidheswari Debi (1888) I.L.R., 16 Cal., 80; Ananda Chandra Bhuttacharjee v. Stephen (1891) I.L.R., 19 Cal., 127; Roop Lall Das v. Manook (1898) 2 C.W.N., 572, and Queen-Empress v. Pratap Chunder Ghose (1898) I.L.R., 25 Cal., 852. The matter for consideration then is--is the subject-matter of dispute within the terms Section 145 of the present Code? We may first of all observe that, with every respect to the learned Judges who decided the former case,' we do not feel bound by the expression of the opinion that the matter properly comes within Section 147, inasmuch as it relates to what may be shortly termed an easement, for that was not a matter properly coming under consideration in that case, and their finding was obiter. At the same time we are bound to give that opinion every consideration and respect in dealing with this case.
3. The proceedings taken show that the dispute has arisen, because the river has gradually altered its course, and the Magistrate has found as a fact that the two landing places are in the possession of the Maharaja of Durbhunga. The right to the ferry, that is, the right to carry passengers to and fro, cannot be treated apart from the possession of the lands used on either side of the stream for the purpose of landing them. No such question as has been attempted to be raised on the judgment of this Court in the previous proceedings, relating to Section 147, therefore, arises in this case; As we understand the Magistrate's preliminary order, he meant to deal with the dispute in this manner; for he describes the subject-matter as the ferry, 'including the land and water upon which the right of ferry is exercised,' &c.; It is not described as a right to use the ferry, and it cannot, therefore, be so regarded.
4. We are of opinion that the rule should be discharged, inasmuch as the proceedings have been properly taken under Section 145 of the Code of Criminal Procedure, 1898.