1. In this case the dispute was with reference to the right to collect tolas, or small perquisites, from Dewangunge hut. The first party on behalf of the local Mahomedans was claiming the right to collect the tolas only on one day every year, for performing a certain religious ceremony. The second parties who were Hindus were objecting to this, saying that the Mahomedans had no such right to collect tolas from the hat as alleged by the first party.
2. Now, the first ground upon which this Rule was issued was that the case was not one falling within Section 147 of the Criminal Procedure Code, and the reason why it is alleged that the case did not come within that Section was that the dispute was not one concerning the right of use of any land.
3. Now, in our opinion, it was a dispute concerning the right of use of land. As far as I can understand, the facts of this case show that the hat was held every week in the particular village. It was held always on the same vacant piece of ground somewhat about the middle of the village, and when the hat was held, people who wanted to sell their goods came and took up their position upon different places on this vacant piece of ground in the ordinary course of events. It may be described as a kind of market, and the place where it is held may be described as a kind of marketplace. The Mahomedans were alleging that they had the right on one day in the year to go upon this piece of land when the hat was held for the purpose of collecting from the people who were there, the shop-keepers I suppose, and also people who frequented the shops, gratuities for the purpose of performing a particular religious ceremony, and the dispute was with reference to the right of the Mahomedans to do that.
4. The question is whether that is a dispute concerning the right of use of any land.
5. The first observation, I would make, is that the words which are used in Section 147 of the Criminal Procedure Code are not the same as those used in Section 145 of the same Code. The words used in Section 145 are these: a dispute likely to cause a breach of the peace exists concerning any land or water.' It has been held by this Court that what is contemplated there is immoveable property, something of which actual: physical possession can be given and taken. But when you come to Section 147, as I have already pointed out, the words used are not concerning land or water, but concerning the right of use of any land or water.' The words used are of wider and more general application. The marginal note describing this Section is disputes concerning easements, etc.' It has been held by this Court that the words of a Section cannot be limited by the marginal, note in accordance with the usual Rule of construction of Statutes. It has, however, been held that the word 'easements' was not used in this Section in the limited sense in which it is used in English Law. It has been expressly so held by this Court in the case of Dukhi Mullah v. Halway 23 C. 55 : 12 Ind. Dec. (N.S.) 37 (and the part of the judgment to which I wish to refer is at page 59) that the word 'easements' was not used in a limited sense as in English Law: and the judgment goes on to point out: In the first place the Section speaks of easements, etc.,' 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. Now, those words 'the right to do anything in or upon any tangible immoveable property', which had been in Section 147 of the previous Criminal Procedure Code, are not to be found in the corresponding Section of the present Code and the material words now are, concerning the right of use of any land or water.' Having regard to the ordinary meaning of the words and to that decision, I am of opinion that the words are wide enough to include such a right of use of the land as is claimed by the Mahomedans in this case, namely, the right to go upon the land for one day in the year for the purpose of collecting gratuities to be used for a certain religious purpose.
7. With regard to the second point, this was of an entirely different nature. It was based on the ground that there was no finding as to the last exercise of the right. This arises in this way. There is a proviso to Section 147 which says this: 'Provided that no order shall be passed under this Section permitting the doing of anything where the right to do such thing is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry; or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or occasions before such institution.' The latter part of this proviso applies to this case; and it is alleged on behalf of the petitioners that there is no finding here that this particular right claimed by the Mahomedans was exercised during the last of such seasons or occasions before the institution of the inquiry; and, therefore, he argues that the Magistrate had no jurisdiction to make the order.
8. It is quite true that there is no express finding to that effect in his judgment. But we have got his explanation and from it we find that 'although there had been Opposition' by the petitioners, that opposition was not successful: and, the evidence of the witnesses for the first party, that is the Mahomedan party, showed that the right was exercised by the first party Mobarak Mallik during the last three years: and that witnesses for the first party proved that the right had been exercised by the first party upto the last year and that they could not only this year collect any tola owing to violent opposition by the second party: and then the Magistrate goes on to refer to the particular witnesses whose evidence I need not specifically mention. Now, if the evidence as to these facts was accepted by the Magistrate, as I gather from his explanation he intended to do, he in fact had jurisdiction. The only thing is that he did not expressly state that finding in his judgment. The only result of making the Rule absolute asking the Magistrate to reconsider the matter would be to ask him to insert that, the effect of which he had stated in his explanation. My learned brother and myself are satisfied on the facts that the Magistrate had jurisdiction to make the order: and we do not think that that is a good ground for making the Rule absolute.
9. With regard to the third point, that there is no finding that there was a likelihood of a breach of the peace, in my opinion, there is a finding to that effect. If it is not express it is certainly implied. Further than that, it was not one of the grounds on which the Rule was granted.
10. For these reasons, we think that the Rule must be discharged.