KALI KUMAR DAS Vs. BEJOY GOBINDA MITRA

JUDGEMENT

(1.) This Rule was granted at the instance of the second party calling upon the opposite party to show cause why certain proceedings purporting to be framed under Section 145 of the Criminal Procedure Code should not be quashed on the third and fifth grounds stated in the petition or why, in the alternative, the case should not be transferred for hearing to the District of Faridpore.

(2.) The facts are shortly as follows: The first party, Bejoy Govinda Mitra and others are the Naib and tenants of the Zemindar Surendra Krishna Dutt. So far as the second patty are concerned. Kali Kumar Das is the Naib of the Zemindar Narendra Narayan Singh and the other persons Nos. 2 to 9 are fishermen claiming rights of fishery granted to them by Narendra Narain Singh and also certain rights appertaining thereto. On the 24th February this year, the first party reported to the Police that a breach of the peace was imminent and accordingly a Sub. Inspector was deputed to report. On the 23rd February 1920 the report was furnished and on the 14th March 1920 the property in dispute was attached by beat of drum. On the 27th March 1920 armed Police were sent to the place and on the 21st April 1620 the second party filed their written statement.

(3.) Now, the real dispute between the parties turns on the question as to whether the proceedings should have been started under Section 145 of the Code of Criminal Procedure or whether they should have been instituted under Section 147. There are passages to which we have been referred both in the Police report and in the written statement filed on behalf of the second party from which it is sought to show that the second party are claiming possession of land, and accordingly it is argued on this basis that Section 147 is not the correct section. I think, however, that on a proper reading of the Police report and the written statement, no real claim to possession of land has been put forward on behalf of the second party, and indeed the learned Advocate. General appearing on behalf of the second party before us has expressly stated that no claim is made on behalf of his clients to possession, Their claim appears to be of this nature. The Zemindar Narendra Narayan Singh, so I understand, claims to have been granted by the Crown a right of fishery in the river Padma and that attached to this right of fishery there was also the right granted to go upon the land, which belongs to and was in the possession of the first party, for the purpose of mooring boats connected with the fishery and also for the purpose of spreading nets for drying. There was a farther claim put forward on behalf of the fishermen, which is this.--that they had acquired by prescription a right to spread and dry their nets upon the land of the first party. Whether such a claim could be substantiated it is not necessary now to consider. But it certainly appears that the only right claimed on behalf of the second party is the right of easement to moor their boats against the land and to spread and dry their nets on the land. In these circumstances the second party contend that no proceedings can lie under Section 145 but that Section 147 is the more appropriate section.