Field, J. (Beverley, J., concurring)
1. In this case a rule was granted in order to have a question decided, which has arisen upon the construction of Section 145 of the Code of Criminal Procedure. The rule is in the following language: 'Let a rule issue on the opposite party to show cause why the order of the 'Deputy Magistrate, so far as regards the land other than the khamar land,' should not be set aside, on the ground that it is bad in law, because it 'concerns merely the right to collect rents from tenants which is not 'tangible immoveable property' within the meaning of Section 145 of the Code of Criminal 'Procedure.' Under the Code which was in force before Act X of 1882 was passed, there can be no doubt that, according to the decisions of this Court, the right to collect rents from ryots did come within the purview of the corresponding Section (530) of the former Code. This was decided in several cases, to two of which we may refer, Sutherland v. Crowdy 18 W.R. Cr. 11 : 9 B.L.R. 229 and Barak Narain Singh v. Luchmi Bux Roy 5 C.L.R. 287. At the same time it was held that the provisions of Section 530 did not apply when there were tenure-holders intermediate between the zamindar and the ryots. This latter point was decided in Empress v. Thacoor Dyal Singh I.L.R. 3 Cal. 320. The present case is not, however, on all fours with this last case. A different view was taken by the Madras High Court, and what we have to consider on the present occasion is, whether it was the intention of the Legislature to alter the law as settled by the decisions of this Court, and to adopt in preference the View taken by the Madras Court.
2. In order to determine this point, we must examine the language of Section 530 of the old Code, and compare it with the language of Section 145 of the present Code. The section of the old Code was as follows: 'Whenever the Magistrate of the 'district, &c.;, is satisfied that a dispute likely to induce a breach of the peace, 'exists concerning any land or the boundaries of any land, or concerning 'any houses, water, fisheries, crops or other produce of land, within the limits of 'his jurisdiction, such Magistrate shall record a proceeding, stating the grounds 'of his being so satisfied, and shall call on all parties concerned in such dispute 'to attend his Court in person, or by agent, within a time to be fixed by such 'Magistrate, and to give in a written statement of their respective claims, as respects the fact of actual possession of the subject of dispute. Such Magistrate 'shall, without reference to the merits of the claims of any party to a right of 'possession, proceed to enquire and decide which party is in possession of the 'subject of dispute.'
3. The language of the present law is as follows: 'Whenever a District 'Magistrate, etc., is satisfied from a police report or other information that a 'dispute likely to cause a breach of the peace exists concerning any tangible immoveable property or the boundaries thereof, within the local limits of his 'jurisdiction, he shall make an order in writing, stating the grounds of his 'being so satisfied, and requiring the parties concerned in such dispute to 'attend his Court, in person or by pleader, within a time to be fixed by 'such Magistrate and to put in written statements of their respective 'claims as respects the facts of actual possession of the subject of dispute. The 'Magistrate shall then, without reference to the merits of the claims of any such 'parties to a right to possess the subject of dispute, peruse the statements so 'put in, hear the parties, receive the evidence produced by them respectively, 'consider the effect of such evidence, take such further evidence (if any) as 'he thinks necessary, and, if possible, decide whether any and which of the 'parties is then in such possession of the said subject.'
4. It has been argued that the introduction of the word 'such' before 'possession' in the last clause of the section just quoted indicates an intention on the part of the Legislature to alter the law. We are not able to accede to this argument. We think that both under the old law and under the new law parties were required to plead as to actual possession, and the decision of the Magistrate was to be upon this same possession. Under the present law, this is clear because the words 'such possession' refer to actual possession. Under the old law it is not so clear because the word 'such' does not come before 'possession'; but we think that, inasmuch as the old law required parties to plead as to actual possession, it was intended that the decision of the Magistrate should deal with the same possession, that is, actual possession. It is more difficult to deal with the alteration in the language of the Legislature introduced by the term 'tangible' before 'immoveable property.' If the word 'tangible' had been introduced before 'possession,' it would have been clear that the intention of the Legislature was to alter the law as laid down by the decision in the case of Sutherland v. Crowdy and the other similar cases; but the use of the word 'tangible' not in connection with 'possession,' but in connection with the words 'immoveable property,' does not in our view indicate a similar intention. It is, we think, quite explainable without assuming any intention on the part of the Legislature to alter the law as laid down by the decisions of this Court. Under the old Code the dispute was a dispute 'concerning' any land or the boundaries of any land or concerning any houses, water, fisheries, 'crops or other produce of land.' Now, this dispute was certainly, so far as regards fisheries, a dispute concerning an incorporeal right, and an incorporeal right is intangible property. The dispute which the present Code speaks of is a dispute concerning any tangible immoveable property; the word 'fisheries' and other words have been omitted. It is clear that a dispute concerning an incorporeal right would not come within the purview of the section in the present Code. We think, therefore, that the alteration in the language by the introduction of the word 'tangible' is explainable by the exclusion from the section of the present Code of words descriptive of incorporeal or intangible right or property. Under the old law it was held that a dispute between rival zamindars as to the right to collect rents was a dispute concerning land. We think it impossible to say that a similar dispute is not, within the meaning of the present law, a dispute concerning tangible immoveable property. The use of the word 'concerning' in the definition seems to make this wide construction possible, and this word is retained in the present Code.
5. Speaking for myself, I may say that I would gladly have come to a different conclusion, because I think that disputes between zamindars as to the right to collect rents ought not to be brought into the inferior Criminal Courts in this country. But applying the ordinary rules of construction, I do not see how we can arrive at any other conclusion than that the Legislature has not had the intention of altering the law as settled by the decisions of this Court. The rule must be discharged.