1. The opposite party have been found to be the occupants of four stalls in a hat which is held at Howrah on one day a week. The petitioner is the proprietor of the hat. The hat is held on a place surrounded by walls, and the gates on those walls are shut at night, and the evidence is, that the stall-holders, on removing their goods, leave the hat entirely empty, when it remains in the charge of the durwans of the second party, the petitioner before us. The opposite party claim the right to continue to be in occupation of the four particular stalls in the ha. The proprietor, on the other hand, claims the right to let out' those stalls to other stall-holders if she gets better terms, or if the opposite party refuse to pay what she asks; These are the circumstances under which the matter reached the point at which the Magistrate thought proceedings under Section 145 of the Criminal Procedure Code were necessary. We are not concerned with the question whether there is any apprehension of a breach of the peace which would justify the proceedings, for the Rule is limited to two grounds which are, in effect, that the subject-matter is not proper for proceedings under Section 145 of the Criminal Procedure Code. Certainly, the facts seem, at first sight, not to lend themselves to such proceedings. The stall-holders do not lay any claim to actual possession of any stall for five days or more in each week when it is conceded that the durwans of the proprietor are in charge of the whole place. Several rulings have been cited before us, but, with one exception, they do not seem to have any application to the question before us, The exception is the case of Manik, Chandra Chakravarti v. Preo Naih Kuar 17 Ind. Cas. 533 : 17 C.W.N. 205 : 13 Cr.L.J. 789 : 17 C.L.J. 397. It is quite true that the facts of that case again are considerably different from those of the present case; but they have this in common that one of the parties claimed the right t% hold possession of a piece of land not continuously throughout the year but at long recurring intervals once every year, while in this case the stall-holders claim possession once every week. The difference appears to be one of degree rather than of kind. The learned Judges in disposing of that case said that an enquiry under Section 145 of the Criminal Procedure Code must be directed to the decision of the absolute continuing possession of either party of the subject-matter of dispute. It appears to me that that element of continuity of possession is an ingredient which is necessary, at any rate, in cases where interruption is not due to seasonal variations, in proceedings under Section 145 of the Criminal Procedure Code. In my judgment the Rule must be made absolute on the grounds on which it was issued, and the order of the Magistrate declaring the stall-holders to be in possession of the stalls set aside.
2. I agree.