Palaniyandi Pandaram and Others vs Palaniappa Thevan

William Ayling, J.—The first contention of petitioners (Palaniandi Pandaram and others) is that the dispute between the parties is not one

falling within the purview of either Section 145 or Section 147 of the Code of Criminal Procedure. The Joint Magistrate has omitted to specify the

provision of law under which his order is passed: but the dispute is described as follows: ""a dispute...concerning the management of Selva

Vinayagar Temple and the lands attached thereto...and with regard to the performance of puja in that temple.

The dispute regarding the lands undoubtedly comes u/s 145 and petitioners'' Vakil does not now seek to attack the Order so far as it relates to

the lands.

There remains the question of the management of the temple and the performance of puja therein.

To disputes of this kind, Section 147 seems"" to me to be inapplicable. That section deals simply with disputes regarding ""the use of any land or

water."" The words, land or water"" are used in their ordinary significance without the extended meaning assigned to them as used in Section 145 of

the Code of Criminal Procedure, by Clause 2 of that section. I entirely concur with the view taken in Guiram Ghoshal v. Lal Beliary Das 6 Ind.

Cas. 182 : 14 C.W.N. 611 : 11 Cri.L.J. 292 : 12 C.L.J. 22 : 37 C.P 578. that the words ""use of any land or water"" will not cover a right to

perform puja in a temple; nor in my opinion would they cover the right of management of the temple itself. The ruling in Muhammad Musaliar v.

Kunji Chek Musaliar 11 M.p 323 : 2 Weir 117 was passed under the former Code of Criminal Procedure, in which the section was differently

worded: the words were ""to do or prevent the doing of anything in or upon any tangible Immovable property."" It appears, if I may say so without

presumption, to have been followed in Kader Batcha v. Kader Batcha Rowthan 2d M. 237 : 4 Cri. L.J. 58 without noticing the alteration in the

section; and also in a recent case quoted to me [Chidambara Gurukkal v. Sengoda Gounden 25 Ind. Cas. 999 : 16 M.L.T. 427 : 27 M.L.J. 587 :

15 Cri. L.J. 671 With the utmost respect I must dissent ""from the two more recent cases and hold Section 47 of the Code of Criminal Procedure

inapplicable.

On the other hand, I can see no reason why a dispute as to the management of the temple should not be dealt with u/s 145 of the Code of

Criminal Procedure. The Magistrate amplifies it in the body of his order into the actual management of the temple building itself,"" and it is obviously

to be understood in this sense. This dispute is in effect a dispute as to the possession of the temple, in so far as a temple is ordinarily susceptible of

possession; and the evidence adduced on both sides deals with such indicia of possession as the holding of the temple key. It is needless to say

that a ""temple"" is a ""building,"" vide Clause 2 of Section 145 of the Code of Criminal Procedure.

If only the right to perform puja to a particular idol in the temple were in dispute, the matter might be different; but that in the present case is only

a portion of the larger issue.

I, therefore, hold that the Magistrate''s proceedings were covered by Section 145 of the Code of Criminal Procedure.

I am clearly of opinion that his jurisdiction was not barred by reason of Exhibit I.

Lastly, it is argued that his findings do not amount to a decision as to possession, within the meaning of Clause 6 of Section 145 of the Code of

Criminal Procedure.

The Magistrate''s order is not very happily worded but it seems to me to amount to this; he finds (and confirms) respondent''s possession of the

temple subject to the single limitation of petitioners'' right to enter and perform puja to a certain idol (referred to as the ""old"" idol). This latter right is

found to have been exercised by petitioner?, and they are confirmed in it.

Such a decision as to possession may be somewhat complicated; but any decision as to possession of a temple must be complicated by

reservations, express or implied. I am not prepared to say that it is not a proper decision within the scope of Clause 6. To hold otherwise would

seem to involve the position that whenever the possession of a party is subject to any limitation, the only course open to the Magistrate is to attach

the property u/s 146 of the Code of Criminal Procedure, a course which must involve considerable hardship, and which should not be resorted to

unless there is no alternative open.

I find no ground for interference and dismiss the petition.