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Judgment
This is a rule calling upon the District Magistrate and the Opposite Party to show cause why the order complained of, which is an order under sec. 145, Criminal Procedure Code, should not be set aside upon three grounds, namely, first, that sec. 145 is not applicable to the present case, as it is one relating to a ferry; second, that the Court below had no local jurisdiction to determine this case; and third, that the proper parties were not before the Court. We are of opinion that the first contention ought to prevail. Sec. 145, Criminal Procedure Code, applies to cases of dispute concerning any tangible immoveable property or boundaries thereof, where such dispute is likely to cause a breach of the peace; and the question is, whether a ferry is tangible immoveable property within the meaning of the section.
It is argued by the learned Advocate-General that the question should be answered in the negative, a ferry being merely a right to use land on either bank of the river for a certain purpose; while it is contended, on the other side, that a ferry is tangible immoveable property, the plying of a ferry involving the possession of land on either bank, which is tangible immoveable property. Now, though land on either bank of the river is certainly tangible immoveable property, a dispute relating to a ferry is not one concerning such land. It is a dispute concerning the right to ply the ferry, that is, to land passengers on either bank. The second paragraph of sec. 145, which limits the inquiry to the question of possession of tangible immoveable property, would go to show that a ferry was not intended to come within the description of " tangible immoveable property;" for it cannot very well be said that a person claiming a right of ferry is in possession, in the ordinary sense of the term, of the land on either bank.
We think that reading sec. 145 along with sec. 147, Criminal Procedure Code, it is clear that questions relating to disputes regarding ferries, were intended to come within the scope of sec. 147 and not within that of sec. 145.
We were asked by the learned vakil of the Opposite Party to affirm this order as properly made under see. 147, even if it could not be made under sec. 145. We do not think we can accede to this contention, because the points for determination under sec. 147 are very different from those under sec. 145, one of the points under see. 147 being the existence of the right in dispute, whereas the point for determination under sec. 1-45 is only the question of possession irrespective of the right to possession.
The first contention of the Petitioners must therefore prevail. So also must the second. The learned Magistrate in his written explanation says that he has nothing to add to what he has said in the order refusing to refer the case to this Court; and in that order he says that even if the Magistrate who heard this case in the first instance had no jurisdiction over the land, he would still have jurisdiction to decide this case having regard to the provisions of sec. 182 of the Criminal Procedure Code. In taking that view the Deputy Magistrate is clearly in error, because sec. 182 relates only to cases of offences, that is, acts which are punishable by law, and a case under sec. 145 is not a case relating to an offence.
There is an affidavit by the petitioner stating that the land on both banks is outside the jurisdiction of the Magistrate.
This statement is not contradicted by any affidavit on the other side: on the contrary the allegation of the other side in their written statement is to the same effect, and the learned Magistrate has said nothing to show that the trying Magistrate had jurisdiction over the land on either bank of the river.
In this view of the ease, as the rule must succeed on the first two grounds, it becomes unnecessary to say anything on the third ground. The result is that this rule is made absolute, and the order of the Court below under see. 145 of the Code of Criminal Procedure is set aside.