K.V. Gopalakrishnan Nair, J.
1. This is a reference by the Addl. Sessions Judge at Jammu recommending that the order of the first class Magistrate at Ramban dated 17th April 1959 directing attachment of property in proceedings Under Section 147 of the Code of Criminal Procedure be set aside.
2. Chuni Lal, applicant, and Ram Lal and Sriniwas, non-applicants, live in adjacent houses. There is a common lane in front of their houses, which stand on a higher level than the lane. A flight, of steps is alleged to have been in existence to enable them to get in to their houses from the lane. Chuni Lal complained that his right to use this flight of steps had been challenged by Ram Lal and Sriniwas. He claimed that he had the right of user of the steps to go to his house. The threatened interference by Ramlal and Sriniwas with his right was alleged to be likely to cause a breach of the peace. On these main allegations he made an application on 14th April 1959 Under Section 147 of the Code of Criminal Procedure to the first class Magistrate at Ramban On 17th April 1959 the Magistrate passed an order in the following words:
The property in. dispute be attached and kept on Supardnama in view of the danger of a breach -of the peace....
Ramlal and Sriniwas who were, aggrieved by this order of attachment moved the Addl. Sessions Judge at Jammu in revision. The learned Judge in a well-considered order has recommended to the High Court that the order of the Magistrate be set aside.
3. The learned Counsel for the applicant has strenuously attempted to support the order in question. His argument is based in the main on the last part of Sub-section (1) of Section 147 of the Code of Criminal Procedure, namely, that 'the provisions of that Section (Section 145) shall, as far as may be, be applicable in the case of such enquiry.' It is pointed out that the second proviso to Sub-section (4) of Section 145 permits a Magistrate to attach the subject of dispute pending his final decision. The power which the Magistrate undoubtedly has under the, second proviso to Section 145(4) can, it is contended, be well exercised even if he is conducting an enquiry Under Section 147.
I am however wholly unable to accede to this argument which overlooks the scope and subject-matter of an enquiry Under Section 147 and that Under Section 145. Section 145 in terms applies to an inquiry relating to a dispute concerning any land or water or the boundaries thereof, whereas Section 147 deals with a dispute regarding any alleged right of user of any land or water. In other words, while Section 145 relates to land or water, Section 147 deals only with rights of user of land or water. Again, Section 145 is concerned with immovable property us such, whereas Section 147 is devoted to certain rights of user of immovable property.
The. question of the actual possession of immovable property is a cardinal factor in an inquiry Under Section 145 but Section 147 docs riot have regard to actual possession of any immovable property. The scope of the two Sections, therefore, markedly differs as does the subject-matter of the inquiry under the two Sections. The provisions in Section 145 empowering a Magistrate to attach the subject of dispute cannot be dissociated from the subject matter of the inquiry and the question of possession involved in such inquiry, To import the attachment provision of Section 145 into Section 147 would be to introduce something into the latter Section which is really not germane to it.
Attachment of immovable property necessarily involves dispossession which can take place only when we are dealing with concrete tangible property. Equally so, transference of actual possession to another person can take place only in the case of property which is capable of actual physical possession and enjoyment. Neither physical dispossession nor transference of actual possession can possibly take place in the case of abstract rights which are incapable of actual physical possession. Rights of user of land or water with which Section 147 is concerned are such abstract rights as cannot be actually taken possession of or put into the actual possession of a person appointed by the court. It, therefore, seems to be clear that the second proviso to Sub-section (4) of Section 145 cannot be made applicable in the case of an inquiry Under Section 147. It is significant that that legislature has expressly stated that the provisions of Section 145 shall apply to an inquiry Under Section 147 only 'as far as may be'. This indicates beyond doubt that the provisions of Section 145 cannot in that entirety be applied to an inquiry Under Section 147. Only those provisions of Section 145 relating to the manner of inquiry as are consistent with the scope and subject-matter of Section 147 can apply to proceedings Under Section 147; and, as I already stated, the provisions relating to interim attachment of property in dispute cannot possibly be. invoked in proceedings Under Section 147. In Ali Mohd. v. Fakiruddin Munshi A.I.R. 1920 Cal. 708 a Division Bench of the Calcutta High Court observed:
In the next place, even assuming that land in Section 147 also includes 'crops or other produce of land', no proceeding has been drawn up under that Section and even if any such proceeding were drawn, the order of attachment of the lac was without jurisdiction, as Section 147 does not provide for attachment and having regard to the subject matter of that Section, no order for attachment can_ be made.
4. The ratio of the decision in Chelliah Pillai v. Ramiah Thevar A.I.R. 1942 Mad 77 is also to the same effect.
5. In Rahim Baksh v. Abdul Wahad ILR (1948) 1 Oil 374, the question arose whether attachment of property could be made and a receiver appointed in proceedings Under Section 147 when the Magistrate finds it difficult to come to a decision on the existence or otherwise of the right claimed in the proceedings. It was held that the Magistrate had no jurisdiction to attach the property or to appoint a receiver. At page 375 the learned Judge stated the position in the following words:
Now, in proceedings Under Section 147, Criminal P.C. there is no conflict regarding the question of possession. This Section deals with an alleged right of user of any land or water.... An attachment means dispossession and where there is no dispute regarding possession I cannot see how a court can dispossess the party which is admittedly in possession of immovable property.
6. In Rudi v. Ram Kumar (S) A.I.R. 1955 Raj 75, it has been laid down that in proceedings Under Section 147 an order of interim attachment of the property cannot be made.
7. The aforesaid decisions, if I may say so with respect, correctly delimit the scope, of proceedings Under Section 147 of the Code of Criminal Procedure,
8. The learned Counsel for the applicants has brought to my notice that the application was filed before the Magistrate not only Under Section 14Y but also Under Section 146 of the Code, I am unable to see how Section 140 can ever be invoked in a case, like the present. That Section must be understood as really supplementary to Section 145 it does not exist independently of Section 145. Proceedings Under Section 146 are only a continuation of the proceedings Under Section 145. If after a full enquiry Under Section 145(4), the Magistrate decides that none of the parties was in actual possession of the subject of dispute on the date of the preliminary order or if the Magistrate is unable to satisfy himself as to which of the parties was in such possession, he may attach the property Under Section 146. In the instant case the dispute squarely falls under the provisions of Section 147. There is no question of applying Section 146 to such a case. Furthermore, it is unintelligible how Section 146 can be invoked even before an inquiry on merits has started. This Section has, therefore, to be altogether left out of account as plainly inapplicable.
9. It follows from the foregoing that neither on principle nor on authority nor on the language of Section 147 can the order-of attachment made by the Magistrate be upheld. The reference of the Addl. Sessions Judge is, therefore, accepted and the order in question of the Magistrate is set aside.