Ram Chandra Prasad ''Visharad'' vs Khokha Sao and Others

G.N. Prasad, J.—The petitioner before me is the first party to a proceeding u/s 147, Code of Criminal Procedure. The dispute is with respect to the right of user which the second party claims over a piece of land measuring 0. 03 acre comprised in Plot No. 500, recorded under Khata No. 161 in Jamharu Tola of village Imamganj, within the jurisdiction of Paliganj Police station, in the district of Patna. The alleged right of user is said to be the right of the general public of the village to go upon the land for the purpose of worshipping a deity of Lord Mahadevjee under a Bar tree admittedly existing on a portion of the said land. In the record of rights finally published in 1910, this plot of land was recorded as Gairmazarua of the Mokarridar and the Malik and described as Sahan in possession of Ram Saran Sao, the grand father of the petitioner, Ram Chandra Prasad ''Visharad''. The case of the petitioner is that the land is his private property and constitutes the Saahan of his residential house admittedly standing over Plot No. 509 (Khata No. 144) situated to the contiguous east of Plot No. 500, which is enclosed towards the north, the south and the west by a boundary wall with an entrance towards the road. The deity, according to the petitioner, is his private property and meant for worship by the members of his family. With respect to the Bar tree, the case of the petitioner is that it had become old and dangerous and, accordingly, he thought it proper to cut down some of its branches, but there was opposition from some of the villagers who approached the Block Development Officer by a petition in August, 1961 saying that it was a sacred tree and its cutting down would injure the right of worship of the public at the said tree as also at the altar of Lord Mahadevjee installed thereunder since more than forty years. The matter was brought to the notice of the Collector of Patna, who directed by an order dated 24th March, 1968, that the status quo should be maintained. The members of the second party, however, persisted in a false claim that the property was a public property and there was apprehension of breach of the peace on that account. The petitioner, therefore, brought the matter to the notice of the Mukhiya of the local Gram Panchayat and the Gram Panchayat passed a resolution to the effect that Plot No. 500 was the private property of the petitioner. Subsequently, the Sarpanch of the Gram Panchayat made a report to the Sub-divisional Magistrate of an apprehension of breach of the peace between the parties in connection with possession over the disputed plot of land. On the basis of the Sarpanch''s report, a proceeding was drawn up between the parties u/s 144, Code of Criminal Procedure, on the 18th September, 1963. On the 9th November 1963 it was converted into the present proceeding u/s 147 of the Code.

The case of the second party is that Plot No. 500 is not the private property of the first party but the property of Lord Mahadevjee for the last forty years where the public in general has been offering Puja. The deity was installed under the Bar tree according to Vedic rites at the instance of the general public and ever since then the general public of the locality as well as People of the surrounding villages go and worship the Lord. Every year on occasions like Shivratri, Nag Panchmi, Shrawani Puja, and on other auspicious occasions, Pujas are held there by public contribution. The first party, however, brought the Gram Panchayat in his collusion and got a report made to the Sub-divisional Magistrate with false allegations relating to the true nature of the disputed property. The case of the second party further is that the public by raising subscription had enclosed the disputed land with a boundary wall in order to protect, the deity and to maintain the sacredness of the soil. But during the pendency of the proceeding u/s 144 Code of Criminal Procedure, the first party stealthily broke a portion of the compound wall with a view to create an outlet from his house to the disputed land. According to the second party, Sant Baba Ramdasji had performed his Tap under the sacred Bar tree till he left this world for his heavenly abode in 1954 of 1955. Thus, the general public has been using this land as a place of worship and it is not the personal property of the first party.

On the materials brought on the record, the learned Magistrate has come to the conclusion that the public in general has the right of use of the Shivala and Bargad tree. He has, accordingly, ordered the first party not to "take possession of the said Shivala including the Bargad tree to the exclusion of the enjoyment of the right of use of the said Shivala and the Bargad tree by the public in general until he (1st party) shall obtain the decree or order of a competent court adjudging him (1st party) to be entitled to exclusive possession". The question is whether this order of the learned Magistrate is well founded.

At the outset it is necessary to indicate that there is a well-marked distinction between the scope of an inquiry which the Magistrate has to make in a proceeding u/s 145 and the scope of an inquiry in a proceeding u/s 147 of the Code. As pointed by R.K. Chaudhary, J. in (1) Rameshwar Rai and Others Vs. Raghu Kahar and Another, , in a proceeding u/s 145 of the Code, the dispute relates to the actual possession of any land or water or boundaries thereof and the Magistrate under that section is empowered to decide in the proceeding the claims of the parties with regard to the actual possession over the same. But in a proceeding u/s 147 of the Code, the water or the land itself is not the subject of dispute, but the subject of dispute is only the right of its user, either by easement or otherwise. In other words, says his Lordship, "the claim of possession of the adverse party is not at all in dispute in this proceeding and the claim of the other party is only to have use of the same notwithstanding the possession of the adverse party."

The distinction between the scope of inquiry under the two sections has also been brought out by G. Mehrotra, J. of the Assam High Court in (2) Smt. Bhubaneswari Goswami Vs. Kaliram Burman, in the following passage.

Section 145 deals with cases where there is a dispute with regard to the land itself likely to result in breach of peace, whereas Section 147 deals with cases where there is a dispute with regard to a right in or over the land. There it was further held:

If the right to use the land is claimed as an incident of ownership and it is alleged that a dispute has arisen as regards such user, it will really be a dispute relating to the land itself, and not in respect of a right in the land.

In the case before his Lordships, the petitioner was claiming that the land belonged to him. It has held that he was not really claiming merely a right of user in the land, but a right of ownership, or, in other words, he was claiming that he was using the land as he was its owner, and not in exercise of any limited right of user. It was held that this could not attract the provision of Section 147 because Section 147 is attracted where the petitioner "claims certain right of user in the land a right different from that of ownership over his own land.

From the aforesaid decisions it is abundantly clear that in the present proceeding the Magistrate was not called upon to decide whether Plot No. 500 is the property of the first party or the property of Lord Mahadevjee, but only the limited question as to whether the second party had the right of user of the land as claimed by it. u/s 147, the right of user can be claimed as an easement or otherwise, meaning thereby by grant or by custom. But in the present case, it is not clear whether the second party has been claiming a right of user over the land by easement or by custom. Only this much is clear that the second party has not made any claim or right of user by grant. However, in (3) Raja Madhu Sudan Dev and Others Vs. Panu Parhi, , it was held by Bucknill, J. that if a road could be proved to be a public road, either by showing that it had be en dedicated to the public or that from time immemorial it had been freely used by the public, no question of easement in favour of a private individual would arise. But even if it might not be possible to show that the road was really a public road, it might still be possible to prove that a private individual had acquired an easement and, therefore, there is nothing to prevent a claim of this double nature being made. It must follow that even if the second party might not be in a position to prove in the present case that the disputed plot of land is public property or the property of a public deity, it is open to it to prove that the public in general has acquired a right of user in the land by easement or otherwise. It is, however, necessary to keep in mind the provisions of Sub-sections (2) and (3) of Section 147 which are in the following terms:

(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right:

Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.

(3) If it appears to such Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right.

In other words, in a proceeding like this, the Magistrate has to find whether the right of user which has been claimed in the property exists, and then he has to find whether such right has been exercised within a period of three months next before the institution of the inquiry, in case where the right is exercisable at all times of the year, or during the last of the seasons or occasions before the institution of the inquiry where the right is exercisable only at particular seasons or particular occasions. The scope of the proviso to Sub-section (2) has been considered in a number of decisions of this Court. In (4) Trijogi Narayan Singh and Others Vs. Kamta Prasad and Another, , the order passed by the Enquiring Magistrate was in the following terms:

Taking the entire evidence into consideration I am of the opinion that the balance of the evidence is in favour of the 1st party and that the right of ''Rasta'' as claimed by the 1st party exists and I hereby order prohibiting any interference into the exercise of the right.

Dealing with this matter, Banerji, J. observed:

In the present proceeding, the Magistrate has, in the final order, quoted above, indeed found the existence of the right of way as claimed by the first party, but there is no sentence or phrase from which an inference can be drawn that he meant that the right of way had been exercised within three months from the date of institution of the enquiry.

The case was therefore remanded by Banerji, J. for reconsideration of the question whether the right of way had been exercised within three months before the institution of the inquiry or not. Referring to (4) Trijogi Narayan Singh and Others Vs. Kamta Prasad and Another, , and other decisions of this Court, it was observed by a Bench of this Court, in (5) Chaturgun Turha and Others Vs. Jamadar Mian, , to which I was a party:

There is no doubt whatsoever that the settled view of this Court is that in the case where the right claimed is exercisable at all times of the year, an order is without jurisdiction unless it is based upon a finding that the right claimed has been exercised within three months next before the institution of the inquiry.

Before dealing with the points which arise in the present case, I would refer to a Full Bench decision of the Calcutta High Court in (6) Dhirendra Nath Das Vs. Hrishikesh Mukherjee and Others, . The question that arose for consideration there was whether a dispute as to the right of worship in a temple or other place of worship necessarily involved a dispute as to the right of user of land within the meaning of that term in Section 147, Code of Criminal Procedure. Upon a review of several decisions it was held that a dispute as to worship may not be a dispute as to the user of any land, if the dispute concerns a right to worship generally and not a right to worship at a particular place in a particular manner. But a right to worship in a particular place must involve the right to use that particular place for a particular purpose or in a particular manner. Therefore, to deny the right of worship in a particular place is to deny the right to use that place in a particular manner. The right to worship cannot be regarded as something entirely if what has to be considered is the right to worship apart from the place of worship a deity in a particular building or place. It must, therefore, be held that an inquiry into the existence of the alleged right of the general public to go upon the disputed land for the purpose of worshipping the idol and the Bar tree falls within the ambit of Section 147, Code of Criminal Procedure.

The points which arise for consideration in the present case are really two; (i) whether there is any right in the members of the public to go upon the disputed land for the purpose of offering worship there as claimed by the second party, and (ii) whether such right has been exercised within the period next before the institution of present inquiry as indicated in the proviso to Sub-section (2) of Section 147.

It will be immediately noticed that the learned Magistrate has recorded no finding at all in terms of the proviso to Section 147 (2), and on this ground alone, the order of the learned Magistrate must be set aside. This is not a case where there was no interference at all on the part of the petitioner or his men to the alleged exercise of the right of worship on the part of the general public. Several of the witnesses of the second party have themselves talked about obstruction in the matter. For example, Akal Mochi (second party witness no. 3) deposing on 16.3.1936 said:

Ramchandra Prasad prohibits the villagers from worshipping and says that the temple is mine. He wanted to cut away the tree but it was stopped because B.D.O. and District Magistrate had gone there. Ramchandra obstructs in worshipping since last two years.

The next witness Dr. Abdul Rahman (second party witness no. 4) has this to say:

The villagers go to worship at this Mahadeo Asthan. There was no obstruction in worshipping there, Ramchandra Prasad obstructs the public in worshipping there since 1961-62.....Even after the order of B.D.O. and Collector Ram Chandra Prasad creates trouble. Then a proceeding u/s 144 Cr. P.C. was started.

The last witness of the second party Ram Pratap Prasad alias Kara Prasad (second party witness no. 6) has said.

Worship always mentioned (sic) but Ramchandra disturbs the worshipping since 1962-63.

Unfortunately, the learned Magistrate paid no attention to the necessity of recording a finding whether the alleged right of worship was, in fact, exercised within the period mentioned in the proviso to Section 147 (2) and so he attached no importance to these and similar statements of the witness of the second party. On the point that Pujas used to be held on the disputed land by public contribution every year on the occasions of Shivratri, Nag Panchmi, Shrawani Puja and on other auspicious occasion?, the second party has led no evidence. Nor has the second party led any evidence in support of its case that the boundary wall enclosing the disputed land was built by the public by raising subscription from the villagers. On this aspect of the case, the solitary evidence is that of Sadhu Singh (witness no. 2) of the second party who said that the Chabutra of the deity had been constructed by the people of the village. But he admitted in his cross examination:

I cannot say that when this terrace was constructed. I did not contribute towards construction of the terrace. I cannot say that he contributed towards its construction.

Another witness Akal Mochi said:

That earth terrace was made before my memory. I also paid contribution to Khokha Sao for repair of the terrace. I paid 0.50 N.P. as subscription about four years ago in the month of Kartik. He did not give any receipt for it. I did not know as to whether there was any account of the subscription money or not.

There is also no evidence in support of the case of the second party that a portion of the compound wall was demolished by the first party during the proceeding u/s 144, Code of Criminal Procedure. These are vital matters which ought to have been considered by the learned Magistrate before upholding the right which the second party has claimed in the present case. I have, therefore, no option to remand the case for reconsideration of the question whether the alleged right of user has been exercised by the general public within the period indicated in the proviso to Section 147(2) or not.

The learned Magistrate has no doubt, recorded a finding that the public in general has right of user of the Shivala and the Bargad tree. He has referred in this connection to certain statements of the various witnesses of the second party. But he has not clearly indicated whether their evidence is of mere visit of the villagers to the land for offering worship there or if such visits were in assertion of any right to go there. It is well known that even in a private temple or place of worship; no body takes exception to strangers or outsiders going and offering worship there. But that cannot indicate that such outsiders or visitors have a right to go and offer worship in such places. In other words, the evidence should be not of mere user, but of user in pursuance of a right in the person or persons who may have made use of the facilities available. Learned counsel for the petitioner has pointed out that five of the witnesses of the second party have not individually claimed to have themselves visited the deity or the Bar tree for the purpose of offering worship there. Only the sixth witness Ram Pratap Prasad alias Karu Prasad, who mostly resides at Patna where he carries on business, has said about going to the land for offering worship in the following terms:--

"Whenever I go home from Patna, I offer worship there". It has, therefore, been contended that the evidence adduced by the second party does not justify the conclusion of the learned Magistrate that the public in general has any right of user of the Shivala or the Bargad tree. Since I have decided to remand this case, I am merely referring to this argument so that the Enquiring Magistrate may record a finding on the basis of clear evidence on the question of a right of user as distinguished from a mere user, because mere user may well be permissive or not objected to on account of religious sentiments by the person lawfully entitled to prevent it.

The result, therefore, is that the order of the learned Magistrate is set aside and the case is sent back for fresh decision according to law in the light of the observations made about upon the materials already on the record.