McDonell and Beverley, JJ.
1. The circumstances under which this rule was issued were the following: On the 16th August a petition appears to have been presented to the Magistrate, alleging that a breach of the peace was imminent, in respect of a certain area of 105 bighas forming a part of a large julkur or lake, called Najainpur julkur, which the Joint Magistrate says is admittedly in the possession of certain persons who hold under the first party. In that petition it was alleged that the second party had excavated a khal or canal leading to the julkur with the object of drawing off and catching the fish of the julkur. On the 23rd August it would appear that the embankment was cut, so as to effect a junction between the khal and the julkur; and on the 24th idem the Magistrate made an order in writing, under Section 145 of the Code of Criminal Procedure, calling upon the parties concerned to put in written statements of their respective claims as regards possession of the 105 bighas which form the subject of dispute. On the 17th November the Joint Magistrate disposed of the matter in this way. He held that, as regards the 105 bighas, no one was in possession on the 24th August, the date on which the Magistrate's order was made, and he accordingly attached so much of the julkur, but he found that the second party having cut the embankment on the 23rd, were in possession of that cutting on the 24th, and he, therefore, ordered them to be retained in possession of that cutting, till ousted by a decree of the Civil Court.
2. It is contended that the Joint Magistrate's order is bad on several grounds. In the first place it is said that the subject of dispute being merely the right of fishing in the julkur, the dispute was not concerning any tangible immoveable property; and that, therefore, no order under Section 145 should have been made by the Magistrate. In support of this contention we have been referred to the remarks made in the cases of Bejoy Nath Chatterjee v. Bengal Coal Co. 23 W.R. Cr. 45 and Pramatha Bhusana Deb Roy v. Doorga Chtirn Bhattacharji I.L.R. 11 Cal. 413. We think that there is force in this contention; and that the order of the Joint Magistrate is bad on this ground.
3. In the next place it is contended that, even supposing the Joint Magistrate had jurisdiction to proceed under Section 145, he was wrong in limiting the enquiry to the fact of possession on the 24th August, which was the date on which the Deputy Magistrate made his order. It is said that the enquiry should have been directed as to which party was in possession on or before the 16th August when the proceedings were instituted by the petition of that date, and that anything which occurred subsequently, which had the effect of changing the position of the parties, should not have been taken into account. We also think that there is force in this objection; and that the enquiry in such cases should be directed to the question as to which party was in possession of the subject of dispute before any proceedings in the Court had been taken in the matter.
4. Then a further objection, which we consider to be fatal to the order of the Joint Magistrate, is this; That whereas the subject of dispute was the 105 bighas which the Joint Magistrate has found to be in the possession of neither party, the order he has made puts the second party into the possession of the khal or cutting regarding which there was no dispute, and as to the possession of which there was no question before him. The effect of this order is virtually to give to the second party possession of the whole of the julkur, so far as the fish may be drawn with the water into the khal. On all these grounds we think that the order of the Joint Magistrate was bad in law, and must be set aside.
5. We, accordingly, make the rule absolute, and set aside the Joint Magistrate's order.