In Re: Amarsang Shivasangji

Norman Macleod, Kt., C.J.—In this case owing to a report of August 31, 1922 from a Police Sub-Inspector the Court was requested to take proceeding against the two opposing parties mentioned in the case u/s 107, Criminal Procedure Code, in order to prevent a breach of the peace with regard to a piece of land known by the name of "Kambharwali" in the village of Adval, both parties laying claim to possession of the land. Proceedings t thereafter were started u/s 145, Criminal Procedure Code The present petitioners claimed to be entitled as owners of the land marked B in the map before us as well as of the land marked A. The respondents disputed the petitioners'' claim to A, and claimed that as being of their ownership and in their possession. No documentary evidence was recorded. The Magistrate said that there was no satisfactory evidence to prove the present possession of the land on either side, so that it would appear that the land marked A was open land not used for any particular purpose, and that the petitioners had been in the habit of going over it in order to get to B. The evidence showed that there was no other way to get to B except over A. The evidence further showed that there had been a partition, and it was owing to this partition that A and B had come into separate ownerships. The Magistrate then held that owing to a certain document the land A must be of the ownership of the plaintiffs, and in the absence of evidence to the contrary he decided that the opposite party, that is to say, the present petitioners, had a right of way to go to B by the entrances D and E. He then passed the following order:--

The parties should therefore be informed that the plaintiffs are entitled to the possession of the land A allowing the other party to go to the land B through A by the entrances shown at D and E, until they are evicted there from in due course of law; that the opposite party is entitled: to use the way D and E, until they are stopped going in due course of law and that each should stop any further disturbance until such eviction or stoppage of way (Sections 145-6 of the Criminal Procedure Code).

Then he added a postscript that under Sections 145, Criminal Procedure Code, the Magistrate had no power to give pathways, etc., over a land in the possession of the opposite party owing to the case of Asit Mohan Ghosh v. Sarat Chandra Ghosh (1913) 17 C.W.N. 793 and directed that the plaintiffs, viz., Jiwubha and others, were entitled to possession of the land in question and should remain in possession of it until evicted there from in due course of law and that the opposite party should be forbidden from disturbing them until such eviction.

The result of that order was that the present petitioners were excluded entirely from their land B, and they have applied to (1913) 17 C.W.N. 793. us to exercise our revisional powers in order to restore the original order which the Magistrate had made.

It has been very strenuously argued before us that proceedings having commenced u/s 145, Criminal Procedure Code, under which the Magistrate would have been empowered to put the present petitioners in possession of the whole of A, he had no power to make an order that they should have a right of way over a part of A, which order could only be made u/s 147. It appears to us that that is far too technical a view to take of the case. The Magistrate might well have altered the proceedings and elected to proceed u/s 147, Criminal Procedure Code. But apart from that it seems to us that the greater includes the less, and that as the Magistrate had power to put the petitioners in possession of a certain portion of A, so as to enable them to go to B, he was also empowered to give them a lesser right, namely, to pass over that strip between D and E in order to get to their land B. We, therefore, restore the original order of the Magistrate, treating it as being made u/s 147, Criminal Procedure Code.