Macpherson and Banerjee, JJ.
1. In this case the first party claimed the right to fish in a certain jhil or lake; the second party, within the limits of whose estate or tenure the jhil is partly situated, denied that right; and the Magistrate, being satisfied that the dispute between the parties was likely to cause a breach of the peace, instituted a proceeding under Section 147 of the Criminal Procedure Code, and ha, has made an order under that section permitting the first party to exercise their right of fishing until the second party obtain a decision of a competent Civil Court authorising them to stop the fishing. This order we are asked by this reference under Section 438 of the Code to set aside.
2. No one appeared before us in support of the original order; but Mr. Hyde, who appeared for the second party, was heard in support of the reference. The grounds on which we are asked to set aside the order are, first, that there was no likelihood of a breach of the peace arising out of the dispute between the parties, and that the proceedings were therefore improperly instituted and should be set aside; second, that the proprietors of the jhil under whom the first party claim, and not the first party who are mere licensees under them, were the proper persons to be made parties to this case, and the order of the Court below which is made in their absence ought to be set aside; and, third, that a case like this does not come within the scope of Section 147 of the Criminal Procedure Code.
3. With reference to the first ground it was urged that, as the Magistrate had only a few days before the institution of the present proceeding recorded an order to the effect that no action was necessary to be taken in the matter, us there was no likelihood of a breach of the peace, the present proceeding was instituted really without any foundation. But the simple answer to this contention is that, after recording the order referred to above, the Magistrate had some fresh materials before him upon which he was satisfied as to the existence of the likelihood of a breach of the peace.
4. In support of the second ground the learned Counsel for the second party cited the cases of Ram Chundra Das v. Monohur Boy I.L.R. 21 Cal. 29 and Bathoo Lal v. Domi Lal I.L.R. 21 Cal. 727, but these cases are clearly distinguishable from the present one. There, with a slight exception, the persons who were made parties had no interest in their own right in the subject-matter of the dispute, but were merely servants of the proprietors, whereas here the persons who are made the first party are the persons who claim for themselves the right to fish, though that right is derived from others, The second ground also must therefore fail.
5. Upon the third ground the contention was that Section 147 of the Criminal Procedure Code relates only to easements and not to a right such as the right to fish, which is not in the nature of an easement. But there is nothing in the section to limit its operation in the manner suggested. The only reference to easements is in the marginal note, which is no part of the enactment [see Claydon v. Green L.R. 3 C.P. 511; Attorney-General v. Great Eastern Railway Co. L.R. 11 Ch. D. 449 (465); Button v. Button L.R. 22 Ch. D. 511; but even the marginal note does not restrict the application of the section in the manner suggested so as to exclude the present case from the scope of its operation. For in the first place it speaks of 'easements, &c;,' and in the second place there is nothing, to show that the British Indian Legislature uses the term 'easements' in the restricted sense in which it is used in English law so as to exclude profits a prendre, while on the contrary a reference to the definition of easements in the Limitation Act (XV of 1877, Section 3) which was passed four years before the Criminal Procedure Code, and in the Easements Act (V of 1882, Section 4), passed in the same year as the Criminal Procedure Code a little more than a month before, shows that the term is used as including profits a prendre. There is then nothing to show that the words 'the right to do anything in or upon tangible immoveable property' in Section 147 do not include the right to fish in a jhil.
6. The grounds urged before us and relied upon in the reference of the Sessions Judge therefore all fail, and we see no reason to interfere with the order made by the Magistrate in this case under Section 147 of the Code of Criminal Procedure.