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Pyari Mohan Shaha and anr. Vs. Harish Chandra Shaha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal207,49Ind.Cas.923
AppellantPyari Mohan Shaha and anr.
RespondentHarish Chandra Shaha
Cases ReferredDurga Proshad v. Basdeo Narain Singh
Excerpt:
criminal procedure code (act v of 1898), section 147, scope of - jurisdiction of magistrate to pass prohibitive order against party claiming easement. - .....each side claims some positive right the existence of which the other side denies and the positive right claimed on either side involves the negative light of preventing the other party from exercising the right which he claims. the magistrate has to deal with opposing rights, which cannot both exist at the same time. but the legislature cannot have intended that the section should be one-sided in its operation or that the party which comes on the record as the 'first party' should have any advantage over the 'second party.' the magistrate must have power to make an order whichever party establishes its right. in the clause, therefore, 'if it appears to him that such right exists,' the words 'such right' must be understood as meaning such right as is claimed by either party. when the.....
Judgment:

1. This is a Rule arising out of proceedings taken under Section 147, Criminal Procedure Code. In these proceedings the two petitioners were the first party and the present opposite party Harish Chandra Shaha was the second party. In his judgment the Magistrate sets out the respective claims made by the two parties in this way: 'The first party in their written statement hold that the passage in question is the landlord's Khas patit land and that they have been using it for more than 20 years and as such have acquired the right of easement of necessity over it. That the second party put a door frame with doors on the western end of the passage and thus completely closed it. Second party in his written statement denies the existence of any such passage as mentioned in the proceedings and any right of easement of the first party whatso-.iver over it. He farther states that the land through which the passage is claimed belongs to him. ' The Magistrate rejected the title put forward by the first party to the land as their khas patit land. He held it to be conclusively proved that the land was not the landlord's khas patit but belonged to Harish Chandra Shaha, that is the second party, in the proceedings before him. Then he found that the first party were not in possession of any right of easement and that no such right existed. The order with which ho concludes is thus worded: 'I, therefore, direct that the first party should not use this passage unless they obtain the decision of a competent Court adjudging them to use it and forbid all disturbances.'

2. The question raised turns upon the language of Section 147, Criminal Procedure Code. That section runs as follows : Whenever any such Magistrate is satisfied as aforesaid that a dispute likely to cause a breach of the peace exists concerning the right of use of any land or water (including any right of way or other easement over the same) within the local limits of his jurisdiction, he may inquire into the matter in manner provided by Section 145 and may, if it appears to him that such right exists, make an order permitting such thing to be done or directing that such thing shall not be done, as the case may be, until the person objecting to such thing being done, or claiming that such thing may be done, obtains the decision of a competent Court adjudging him to be entitled to prevent the doing of, or to do, such thing, as the case may be. ' Then follows a proviso with which we are not immediately concerned.

3. The point taken for the petitioners is that the section only empowers the Magistrate to act, if it appears to him that such right exists. It is contended that in the present case the Magistrate found that the right of easement which the petitioners claimed did not exist and having so found he was obliged to stay his hand and had no jurisdiction to make the order which he has made.

4. Now, it has long been recognised that the present Section 147 is not well or artistically drafted. In the case of Pasupati Nath Bose v. Nando Lal Bose 5 C.W.N. 67 : 28 C. 784, which was decided about two years after the Code of 1893 came into force, the language of the section was comment-ed on. The learned Judges observed that the section had not been happily expressed and that if strictly construed it was meaningless.

5. Later in their judgment, the learned Judges point out that the confused language is due to careless drafting. The Code of 1882 spoke in the opening clause of 'the right to do or prevent the doing of anything in or upon any tangible immoveable property'. The Code of 1898 speaks instead, of 'the right of use of any land or water (including any right of way or other easement).' The change was made to obviate the difficulty which had attended the expression 'tangible immoveable property'. The rest of the section, however, was left in the Code of 1893 as it stood in the Code of 1832. The draftsman did not notice that the relative words 'such right' and 'such thing' which occurred later in the section were thus deprived of their grammatical antecedents.

6. The difficulty of construing the language as it stands makes it permissible to refer, as I have done, to the history of the section for the purpose of elucidating the meaning. The object of the section is to give the Magistrate summary powers to be used for the purpose of preventing breaches of the peace. Our duty is to read the section as a whole, with the light thrown upon it by its history and its object, in order, if possible, to find some reasonable interpretation of its terms.

7. When a dispute exists concerning the 'right of use of any land or water', each side claims some positive right the existence of which the other side denies and the positive right claimed on either side involves the negative light of preventing the other party from exercising the right which he claims. The Magistrate has to deal with opposing rights, which cannot both exist at the same time. But the Legislature cannot have intended that the section should be one-sided in its operation or that the party which comes on the record as the 'first party' should have any advantage over the 'second party.' The Magistrate must have power to make an order whichever party establishes its right. In the clause, therefore, 'if it appears to him that such right exists,' the words 'such right' must be understood as meaning such right as is claimed by either party. When the Magistrate has found that one of the parties has the right which he claims, the enabling clause which follows, 'may make an order permitting such thing to be done, or directing that such thing should not be done as the case may he,' is clearly intended to give him the power to protect the right so found to exist. The relative words such thing' have no true ' antecedent, hut the sense is not difficult. The protection is to be afforded by some appropriate order of permission or prohibition.

8. In the present case the Magistrate has found that the second party has the right to use the land free of the easement claimed by the first party. That includes the right to erect on the land a door frame with doors and the right to prevent the first party from using the land as a passage. The Magistrate has framed his order as an order of prohibition. It might' have been framed as an order of permission, but as it stands it is capable of being regarded as an older within the scope of the section.

9. In the case of Durga Proshad v. Basdeo Narain Singh 17 C.W.N. cexlvii (247) the precise point taken before us was not argued but the learned Judges certainly assumed in their judgment that the Magistrate had jurisdiction to make a prohibitive order against the party who was found not to have the right which he claimed.

10. In the view we take the Rule must be discharged.


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