RAMESHWAR RAI Vs. RAGHU KAHAR

JUDGEMENT

(1.) The members of the first party in a proceeding under Section 147 of the Code of Criminal Procedure are the petitioners in this care. The dispute relates to certain customary rights exercised over plot No. 572 of Khata No. 146. The case of the petitioners is that the plot in question is ghainnaz-rua malik land, and over this land the residents of the village, along with the ancestors of the. petitioners, used to keep dead bodies for some time for collection of persons fr carrying the same to river Ganges for cremation from time immemorial, and that the residents of the village burnt 'sambat' in Phalgun every year over that piece of land since time immemorial. They thus claimed to have acquired customary rights for using said plot for keeping the dead bodies before being taken to the Ganges and for burning 'sambat' every year in the month of Phalgun. The opposite parties, who are the members of the second party in the proceeding, claimed the plot in question to be in their cultivating possession as having been taken on settlement from the landlord. During the pendency of the proceeding, the petitioners made an application filed in this Court, for attachment ot the plot in question, because they apprehended that all the signs of the burning of 'sambat' and keeping of dead bodies would be removed by the members of the second party if they were permitted to cultivate the land. They prayed for maintaining the status quo by attaching the land in question. The learned Magistrate rejected that application, because, in his opinion, there could not be any attachment of the land in a proceeding under Section 147 of the Code of Criminal Procedure. After having unsuccessfully moved the learned Sessions Judge, the petitioners have come up to this Court for setting aside the order of the learned Magistrate.

(2.) It has been contended by Mr. Ghose, appearing for the petitioners, that the order of the Magistrate is wrong in law, because, reading the provisions of Section 147 along with those of Section 145 of the Code of Criminal Procedure, the land over which the right was claimed in the proceeding under Section 147 could be attached. Before dealing with that question, however, I may point out here that in any case the prayer made by the petitioners could not have been allowed by the Magistrate.

(3.) The petitioners wanted the Magistrate to attach the land in question so as to maintain the status quo. In other words, they wanted the Magistrate to permit them to keep their dead bodies and burn 'sambat' over the land in question pending the disposal of the proceeding. Such a prayer is not contemplated by the provisions for attachment. By attachment the Court takes possession of the property in dispute and the same is restored to the party which ultimately comes out successful in the proceeding. It is not, however, meant for enabling, One of the parties to use the same in accordance with the claim put forward which is itself the subject-matter of enquiry in the proceeding. In other words, by making such a prayer the petitioners wanted to exercise the right which, as a matter of fact, is disputed by the other side. Such a course is never contemplated to be adopted by making an attachment of the property. Moreover, according to the prayer of the petitioners themselves, the main object of getting the attachment was to prevent the disappearance of the signs of keeping the dead bodies and burning 'sambat.' But in this case the report of the Block Development Officer as well as his evidence show that the land had already been cultivated by the members of the second party, and, that being so, there could be no meaning in making the attachment preventing the second party from cultivating the land so as not to make the signs disappear.