Narayana Asari and Others vs Kandasami Asari

These proceedings arose out of a dispute as to the right to the possession and management of a temple in the village of Valavellam Eral. Both

parties are Asaris, the appellants to this Court being bell-metal workers and the respondents goldsmiths. The goldsmiths claimed that no other

persons than themselves had any right of access to the temple except by their sufferance; the bell-metnl workers have maintained that, while the

right of worship and access to the temple is common to all Asaris, the management and consequent possession of the temple belongs to certain

huqdars of whom they are four.

The dispute, which has been in existence for many years, became exceptionally acute in January of last year. Petitions were presented by both

parties to various Magistrates and Police officials; it is not clear, nor is it material, which party took the initiative or what the petitions contained. On

the 20th January 1914 with the aid of the Police, kodai was performed by the goldsmiths, and it was performed again by the bell-metal workers

three days later on the 23rd January, apparently also assisted by the Police keeping order. On the 28th March matters having got no better, the

Divisional Magistrate proceeded to exercise the powers conferred upon him by Section 145 of the Criminal Procedure Code, and on that day

made an order under the section summoning the parties to put in written statements, and to appear before him on the 17th April in support of their

respective claims to be in actual possession of the temple. This order was duly served on the persons named in it, including all the appellants and

the respondents; they put in written statements and appeared before the Magistrate on the 17th and 18th April, and a large number of witnesses

were examined on dates to which the case was subsequently adjourned. He found that the appellants were in actual possession of the temple and

forbade interference with such possession until a Court of Law should decide the case upon the merits. There was evidence before him that that

possession had lasted since the 23rd January, i.e., for more than two months before his preliminary order, as required by the proviso to Sub-

section 4 of Section 145.

This decision was brought up on revision to the High Court, and its determination came before Sadasiva Aiyar, J. See 26 Ind. Cas. 644-Ed.

The learned Judge set aside the order of the Magistrate, on the ground that the present appellants'' own case as set out in their written statement

was not that they were entitled to exclusive possession, but only to possession on behalf of the whole body of huqdars of which they formed only a

part and that accordingly their possession could not in law be regarded as exclusive possession. In so deciding, he expressed himself to be

following the authority of Tarujan Bibee v. Asamuddi Bepari 4 C.W.N. 426. We think that such considerations are quite outside the purview of

Section 145, which, in our view, is concerned solely with actual physical possession, whether lawful or unlawful, whether in contemplation of law

enjoyed by the possessor in his own right or on behalf of others. This seems to us clearly to follow from the words of the section. The issue is

defined to be the ""fact of actual possession"" (sub-section 1) and the Magistrate is to decide it ""without reference to the merits of the claim of any

party to a right to possession"" (sub-section 4). The decision in Tarujan Bibee v. Asamuddi Bepari 4 C.W.N. 426 is not only not inconsistent with

the view we take, but supports it; the petitioner there failed because his possession was joint possession with another, not in contemplation of law,

but in actual physical fact.

A further contention was pressed upon us by the respondent. It was said that the written statement put in by the appellants dealt only with their

legal rights on the merits, contained no allegation that they were in actual possession, and no prayer for confirmation of that possession and that,

therefore, the Magistrate had no jurisdiction to make the order in this case. It is the fact that the written statement was directed solely to the

question of right and omitted to deal with the one relevant question, that of possession in fact. Where proceedings are initiated by a document

emanating from one of the parties, as in the ordinary case of a plaint in a civil suit, the jurisdiction of the Court is, no doubt, limited by the

allegations in that document and the relief sought in it. If the allegations disclose no cause of action, and no relief is sought which the Court has

power, to grant, the Court has no jurisdiction to grant relief which is not sought. But the proceedings u/s 145 are of quite a different nature. They

are initiated by the Magistrate himself in the interests of public order and tranquillity; and it is his preliminary order which defines the issue to be

determined and founds the jurisdiction to determine it. The written statements of the parties are merely materials to assist the Magistrate in

ascertaining the grounds on which they claim possession; the fact that the written statement of one party is not required to be served upon the other

is conclusive to show that its contents neither found nor limit the jurisdiction. A difficulty might arise if it could bs shown that the Magistrate was

misled by the irrelevance of the written statements and had taken into consideration matters alien to the issue. Nothing of the kind took place here;

the Magistrate says in the clearest terms in paragraph 5 of his order: The present enquiry is only concerned with actual possession of the temple.

The Magistrate correctly defined the issue, the evidence was directed to that issue, and the order he made was in accordance with that evidence

and was one which he had jurisdiction to make. We allow the appeal with costs and restore the order of the Divisional Magistrate.