KUNHAMMAD MAKKARU Vs. ABDUL RAHIMAN

JUDGEMENT

(1.) THIS revision petition is filed against the order passed by the Executive First Class Magistrate, Muvattupuzha in M. C. 13 of 1980 under Section 145,cri. P. C. In the order it is stated that the learned Magistrate was satisfied from the report of the police that a dispute exists concerning the conduct of the Chandanakudam Festival in the mosque in Mulavoor Village, The parties were called upon to put in written statements of their respective claims as to the fact of the management of the mosque. The learned Magistrate also passed orders attaching the mosque and its premises under proviso 3 to Sub-section (4) of Section 145, Cri. P. C. and appointing the Deputy Tahsildar of Muvattupuzha as the receiver of the mosque for the conduct of the festival. This order is challenged as one being passed without jurisdiction.

(2.) A reading of the relevant papers in this case would show that the dispute really relates to the right to perform certain services in the mosque and it is argued by the petitioner's learned Counsel that1 this is not a case which could have been dealt with under Section 145 Cri P. C. and if at all any action had to be taken it ought to have been only under Section 147 Cri. P. C. because there was really no claim for possession of the mosque, but only the right to perform some services in the mosque. The respondent's counsel on the other hand argues that Section 147 applies to a case of dispute regarding the right of user of land or water and the right to perform services in a mosque is not such a right of user of land.

(3.) THE Full Bench of the Calcutta High Court in Dhirendra Nath Das v. Hrishikesh Mukherjee has revealed the decisions of the various High Courts in India on this subject and overruling Guiram Ghosal v. Lal Behari Das ILR 37 Cal 578 and Ram Saran v. Raghu Nandan ILR 38 Cal 387 came to the conclusion that a dispute as to the right of worship in a temple or other place of worship necessarily involves a dispute as to the right of user of land within the meaning of that term in Section 147, Cri. P. C. The Madras High Court has also consistently taken the view that a right to worship in a mosque or to officiate as Kazi therein or to perform a puja comes within tire operation of Section 147, Reference may be made to Muhammad Musaliar v. Kunji Chek Musaliar ILR 11 Mad 323, Kader Batch v. Kader Batcha Rowthan ILR 29 Mad 237, Chidambara v. Sengoda 27 Mad LJ 587: AIR 1915 Mad 84, Sinnaswami Chetti v. Palani Goundan AIR 1925 Mad 779 and Velappa Gounden v. Ramaswami Goundan AIR 1938 Mad 537. The view similar to the Madras view has been taken by the Allahabad High Court in the case in Daya Ram v Emperor AIR 1930 All 452 and by the Bombay High Court in In re Pandurang Govind ILR 24 Bom 527. The Travancore High Court in Thomas v. Skaria Kathanar 31 Trav LJ 1223 and the Cochin High Court in Ahmrnadu Kunju v. Ammu Muharnmed 5 Cochin 507 has adopted the same view and this has been followed in Kochitti Chacko v. Markose Kathanar Joseph Kathanar 1952 Ker LT 361 : AIR 1952 Trav-Co 531. The only decision brought to my notice which takes a contrary view is the decision in Abdul Majid Shah v. Muharnmed Saheb Azizujdin AIR 1941 Nag 171, where it was stated that though the main dispute is as regards the right to receive the offerings, it centres round and depends upon the right to sit in a particular spot and it relates either to the possession of the land or to its use and therefore the order of the Magistrate whether regarded as one made under Section 145 or under Section 147 is right.