1. This Rule was granted at the instance of the second party calling upon the opposite party to show cause why certain proceedings purporting to be framed under Section 145 of the Criminal Procedure Code should not be quashed on the third and fifth grounds stated in the petition or why, in the alternative, the case should not be transferred for hearing to the District of Faridpore.
2. The facts are shortly as follows:
The first party, Bejoy Govinda Mitra and others are the Naib and tenants of the Zemindar Surendra Krishna Dutt. So far as the second patty are concerned. Kali Kumar Das is the Naib of the Zemindar Narendra Narayan Singh and the other persons Nos. 2 to 9 are fishermen claiming rights of fishery granted to them by Narendra Narain Singh and also certain rights appertaining thereto. On the 24th February this year, the first party reported to the Police that a breach of the peace was imminent and accordingly a Sub. Inspector was deputed to report. On the 23rd February 1920 the report was furnished and on the 14th March 1920 the property in dispute was attached by beat of drum. On the 27th March 1920 armed Police were sent to the place and on the 21st April 1620 the second party filed their written statement.
3. Now, the real dispute between the parties turns on the question as to whether the proceedings should have been started under Section 145 of the Code of Criminal Procedure or whether they should have been instituted under Section 147. There are passages to which we have been referred both in the Police report and in the written statement filed on behalf of the second party from which it is sought to show that the second party are claiming possession of land, and accordingly it is argued on this basis that Section 147 is not the correct section. I think, however, that on a proper reading of the Police report and the written statement, no real claim to possession of land has been put forward on behalf of the second party, and indeed the learned Advocate. General appearing on behalf of the second party before us has expressly stated that no claim is made on behalf of his clients to possession, Their claim appears to be of this nature. The Zemindar Narendra Narayan Singh, so I understand, claims to have been granted by the Crown a right of fishery in the river Padma and that attached to this right of fishery there was also the right granted to go upon the land, which belongs to and was in the possession of the first party, for the purpose of mooring boats connected with the fishery and also for the purpose of spreading nets for drying. There was a farther claim put forward on behalf of the fishermen, which is this.--that they had acquired by prescription a right to spread and dry their nets upon the land of the first party. Whether such a claim could be substantiated it is not necessary now to consider. But it certainly appears that the only right claimed on behalf of the second party is the right of easement to moor their boats against the land and to spread and dry their nets on the land. In these circumstances the second party contend that no proceedings can lie under Section 145 but that Section 147 is the more appropriate section.
4. On behalf of the first party it has been strenuously argued before us that having regard to the wording of Section 145 as amended, a question with regard to an easement can be dealt with as well under Section 145 as under Section 147. It is said that the words in Section 145 'concerning any land or water,' coupled with Sub-Section 2 (the words 'concerning any land or water' having been substituted for the former words of the section 'tangible immoveable property'), show that disputes with regard to easements fall equally under Section 145 as under Section 147. Taking the words of the section itself I should have thought, apart from any authority, that when you have, as in Section 145, the words 'concerning any land or water' coupled with the provisions of Sub-Section 2, and when you have Section 147 expressly dealing with easements, that on the words of the two sections, an easement cannot be dealt with under Section 145. But the learned Counsel who appears on behalf of the first party has referred us in support of his contention to two cases. The first is a case reported in I.L.R. 26 Cal. 188, being the case of Hurbullubh Narain Singh v. Luchmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. (N.S.) 725, and the other is a case which is not reported, namely, Criminal Revision No. 606 of 1916. So far as the reported case is concerned, the question there is with regard to a ferry, and it was held in that case that under the words of Section 145 as amended, the right to a ferry cannot be treated apart from the possession of the lands used on either side of the stream for the purpose of landing passengers carried by the ferry and that it was a proper case to be dealt with under Section 145 of the Criminal Procedure Code. Whether the ferry is, strictly speaking, an easement or not, I should myself have grave doubts. So far as English Law is concerned it is a franchise, and I do not think the case reported as Hurbullubh Narain Singh v. Lachmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. (N.S.) 725, really assists us so far as the present question is concerned. The question which arose in case No. 606 of 1916 was with regard to grazing land. The owner of the land was not a party to the proceedings there, and it must have been a dispute as to which of two persons was entitled to exercise the rights of grazing cattle over the land. No question apparently was raised as to the right of easement. Therefore, I do not think that Case No. 606 of 1916 is an authority for the question which is now raised before us. We think, therefore, that having regard to the facts of this case, as already stated and as they are now before us, and having regard to the disclaimer at the Bar of any claim to possession on behalf of the second party, that proceedings cannot now be taken under Section 145 but that such proceedings should have been taken under Section 147 of the Criminal Procedure Code It is admitted by both parties at the Bar that no fresh report is necessary, and it is open to the Magistrate, if he thinks fit, without calling for any Police report, to commence fresh proceedings under Section 147 of the Criminal Procedure Code.
5. In the result, the Rule is made absolute and the second question raised in the Rule does not arise.
6. I agree.