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Guiram Ghoshal and anr. Vs. Lal Behary Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.182
AppellantGuiram Ghoshal and anr.
RespondentLal Behary Das and ors.
Cases ReferredMuhammad Musaliar v. Kunji Gkek Musaliar
Excerpt:
criminal procedure code (act v of 1898), sections 145, 147 - hereditary right to perform duties of pujari, whether within section 147--right of use of land. - .....which is disputed and not the use of the land. the expression 'land,' is not defined in the code of criminal procedure, but it is to be observed that for the purposes of the somewhat analogous provisions of section 145, it is not referred to as necessarily including buildings. another view has been adopted by the madras high court in kader batcha v. kader batcha rowthan 29 m. 237 : 4 cr. l.j. 58, following a previous decision muhammad musaliar v. kunji gkek musaliar 11 m. 323,: of the same court; but we can only say that, looking at the obvious purposes for which the section was intended, and considering also the scope of section 145, criminal procedure code, we think that the present dispute is certainly not one which has intended that the section should cover.3. the result is.....
Judgment:

1. This case arises under Section 147, Criminal Procedure Code. There is a dispute between the parties, one of whom claims as against the other an hereditary right to perform the duties of pujari of an idol in a certain temple. The other party makes the case that he is merely the servant. On the matter coming before the Magistrate, he held that he had no jurisdiction under section, 147, Criminal Procedure Code, to deal with this dispute on the ground that the rights set forth by the petitioners, did not amount to an easement over any land.

2. On this we have granted a Rule to show cause why the order should not be set aside on the ground that the Magistrate had jurisdiction to deal with the case. On considering the matter and hearing the arguments of the learned pleaders, we are of opinion that the Magistrate was right Section 147, Criminal Procedure Code, as has been pointed out, is not in terms confined to easements but relates to any dispute concerning the right of use of land or water. In the present case there is no doubt a dispute, but looking at the terms of the section, we cannot consider that it is the right of use of land that is here in dispute. It may be that it is impossible to perform the duties of a pujari without entering upon the land on which the temple is built. But it is the worship which is disputed and not the use of the land. The expression 'land,' is not defined in the Code of Criminal Procedure, but it is to be observed that for the purposes of the somewhat analogous provisions of Section 145, it is not referred to as necessarily including buildings. Another view has been adopted by the Madras High Court in Kader Batcha v. Kader Batcha Rowthan 29 M. 237 : 4 Cr. L.J. 58, following a previous decision Muhammad Musaliar v. Kunji Gkek Musaliar 11 M. 323,: of the same Court; but we can only say that, looking at the obvious purposes for which the section was intended, and considering also the scope of Section 145, Criminal Procedure Code, we think that the present dispute is certainly not one which has intended that the section should cover.

3. The result is that the Rule is discharged.


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