Sheikh Amir Hamze vs Sheikh Yakuk

Debabrata Mookerjee, J.—This is a petition for revision of an order made by the Sub-divisional Magistrate of Arambagh dated August 30, 1954, by which the opposite party were declared under Sub-section (6) of Section 145 of the Code of Criminal Procedure entitled to possession of plot No. 973 of Mouza Balurdi, police-station Arambagh and orders were made forbidding interference with such possession until eviction in due course of law.

The case made by the first party, who are the opposite party in this Rule, is to the effect that the disputed land about 5 bighas in area is used by members of Mahomedan public on two occasions in the year, that is to say, during the Iddujoha and Bakrid, festivals. The claim made by the first party is that the members of the Muslim public assemble on the disputed plot in large numbers on those two stated days in the year for the purpose of saying their prayers. It is further alleged that students of the local school also play football there but they are merely licensees. The allegation is that the second party, who are the Petitioners in this Rule, attempted to interfere with the possession of members of the Mahomedan public by cultivating the land. The Petitioners who were the second party to the proceedings denied the allegations made by the first party, particularly the averment that members of the Mahomedan public assemble on the occasion of the festivals mentioned above for the purpose of saying their prayers.

Evidence was gone into by the learned Magistrate, who upon a consideration of the claims of the respective parties as respects actual possession of the land in dispute, came to the conclusion that the first party had established their case. The result was that the learned Magistrate made an order declaring that "the "Mahomedan public is in actual physical possession of plot 973 "for the purpose of saying Id prayer twice in the year" and as such they were entitled to possession of the plot for the purpose of saying that Id prayer twice annually until evicted in due course of law.

The Petitioners, thereafter, applied to the Sessions Judge of Hooghly for a reference to this Court with the recommendation that the order of the learned Sub-divisional Magistrate be vacated.

The learned Judge, however, declined to interfere. Thereafter the present Rule was obtained.

Mr. Talukdar, appearing on behalf of the Petitioners, has contended, in the first place that the proceedings were inappropriate. The argument seems to be that since the factum of possession of the disputed land relates to the exercise of an alleged right of user in connection with Id prayers, Section 147 of the Code of Criminal Procedure was more appropriate than Section 145 of the Code. In view of the Full Bench decision of this Court in the case of Dhirendra Nath Sen v. Hrishikesh Mukherjee ILR (1952) Cal. 119 (W.B.), it is impossible to overrule the contention put forward by Mr. Talukdar. I must, therefore, hold that there is substance in this contention.

It is next contended that in view of the case made by the first party namely that members of the Mahomedan public were in actual possession of the land in question only twice during the year, the provisions of Section 145 of the Code of Criminal Procedure are not attracted. Mr. Talukdar has elaborated his argument by submitting that the scheme of Section 145 of the Code would seem to imply that there must be a continuity of possession claimed on behalf of the party who seek to fortify themselves by obtaining an order u/s 145 of the Code in their favour. It must be said that there is considerable force in this contention also.

Possession in order to be dealt with u/s 145 of the Code of Criminal Procedure, assuming that section applied, has to be continuous in the sense indicated by implication in Section 145 itself. There may be occasions when right of user of property which is the subject-matter of dispute is not capable of continuous exercise literally so-called; but then in a case of this kind where possession of a plot of ground is claimed on behalf of a party it is necessary for that party to establish that the claim of possession is not intermittent but continuous, at any rate, in so far as the nature of the property admits. There may be instances where continuous possession is interrupted and such instance is envisaged in the first proviso to Sub-section (4) of Section 145 of the Code. In the present case, however, the nature of the property to which the dispute relates is such that the party claiming to be entitled to possession must succeed in adducing evidence of continuous actual physical possession. This view finds support in a Bench decision of this Court in the case of Nayan Manjuri Dasi v. Fazley Huq Sardar I.L.R(1922) Cal. 871 where it was held that possession contemplated by Section 145 of the Code is, in cases where interruption is not due to seasonal variations, continuous and not merely occasional possession. In that case there was a dispute raised by some stall-holders of a hat and these stall holders claimed to be in actual possession of the stalls only one day in the week and that at the close of that day they would remove their goods and the gates of the hat would remain closed for the remaining days of the week at the instance of the proprietor''s servants. Question arose whether in those circumstances the stall-holders could be said to be in actual possession of the stalls in question. It was observed by Walmsley, J. with whom Suhrawardy, J. agreed as follows:

It appears to me that the element of continuity of possession is an ingredient which is necessary at any rate in cases where interruption is not due to seasonal variations in proceeding u/s 145 of the Code of Criminal Procedure.

The learned Judge also referred to the circumstance that possession recurring at long intervals, say once every year or even once every week would not be possession within the meaning of Section 145 of the Code of Criminal Procedure.

It is quite clear that upon the case made by the first party the possession of the land in question was merely casual or seasonal and certainly not continuous. It is at the most occasional possession and that being so the provisions of Section 145 of the Code of Criminal Procedure even if otherwise appropriate cannot properly be applied to a case of this kind.

There is another feature of the case to which I have to call attention. The order of the learned Sub-divisional Magistrate made u/s 145(6) declaring the first party to be entitled to possession of the land in dispute is somewhat of an extraordinary nature. The order in terms says that the Mahomedan public are found to be in actual physical possession of the plot "for the "purpose of saying Id prayer twice in the year". I do not quite understand if the learned Magistrate meant to say that the Mahomedan public will be in possession only twice during the year. To my mind this order is extremely precarious which shows how utterly inept were the proceedings and how wholly inappropriate were the allegations in the first party''s case vis-a-vis the provisions contained in Section 145 of the Code of Criminal Procedure. To say the least, the order is wholly unpractical and cannot possibly be given effect to. It is open to the grave objection that such an order cannot serve the real purpose for which orders under Chapter XII of the Code of Criminal Procedure are made, namely maintenance of public peace. Magistrates are clothed with the jurisdiction to deal with disputes relating to land and water only for the purpose of preserving public peace. If public peace cannot adequately be safeguarded bv an order of this kind I should think that a proceeding such as this fails of its true purpose by leaving all the days of the year, except two, at large to the tender mercies of any breaker of the peace. This reinforces the view that the proceedings were misconceived.

The result, therefore, is that this Rule is made absolute. The order of the learned Sub-divisional Magistrate declaring the first party to be entitled to possession u/s 145(6) of the Code of Criminal Procedure is accordingly set aside.