NARAYANA ASARI Vs. KANDASAMI ASARI

JUDGEMENT

(1.) These proceedings arose out of a dispute as to the right to the possession and management of a temple in the village of Valavellam Eral. Both parties are Asaris, the appellants to this Court being bell-metal workers and the respondents goldsmiths. The goldsmiths claimed that no other persons than themselves had any right of access to the temple except by their sufferance; the bell-metnl workers have maintained that, while the right of worship and access to the temple is common to all Asaris, the management and consequent possession of the temple belongs to certain huqdars of whom they are four.

(2.) The dispute, which has been in existence for many years, became exceptionally acute in January of last year. Petitions were presented by both parties to various Magistrates and Police officials; it is not clear, nor is it material, which party took the initiative or what the petitions contained. On the 20th January 1914 with the aid of the Police, kodai was performed by the goldsmiths, and it was performed again by the bell-metal workers three days later on the 23rd January, apparently also assisted by the Police keeping order. On the 28th March matters having got no better, the Divisional Magistrate proceeded to exercise the powers conferred upon him by Section 145 of the Criminal Procedure Code, and on that day made an order under the section summoning the parties to put in written statements, and to appear before him on the 17th April in support of their respective claims to be in actual possession of the temple. This order was duly served on the persons named in it, including all the appellants and the respondents; they put in written statements and appeared before the Magistrate on the 17th and 18th April, and a large number of witnesses were examined on dates to which the case was subsequently adjourned. He found that the appellants were in actual possession of the temple and forbade interference with such possession until a Court of Law should decide the case upon the merits. There was evidence before him that that possession had lasted since the 23rd January, i.e., for more than two months before his preliminary order, as required by the proviso to Sub-section 4 of Section 145.

(3.) This decision was brought up on revision to the High Court, and its determination came before Sadasiva Aiyar, J. See 26 Ind. Cas. 644-Ed. The learned Judge set aside the order of the Magistrate, on the ground that the present appellants own case as set out in their written statement was not that they were entitled to exclusive possession, but only to possession on behalf of the whole body of huqdars of which they formed only a part and that accordingly their possession could not in law be regarded as exclusive possession. In so deciding, he expressed himself to be following the authority of Tarujan Bibee v. Asamuddi Bepari 4 C.W.N. 426. We think that such considerations are quite outside the purview of Section 145, which, in our view, is concerned solely with actual physical possession, whether lawful or unlawful, whether in contemplation of law enjoyed by the possessor in his own right or on behalf of others. This seems to us clearly to follow from the words of the section. The issue is defined to be the "fact of actual possession" (sub-section 1) and the Magistrate is to decide it "without reference to the merits of the claim of any party to a right to possession" (sub-section 4). The decision in Tarujan Bibee v. Asamuddi Bepari 4 C.W.N. 426 is not only not inconsistent with the view we take, but supports it; the petitioner there failed because his possession was joint possession with another, not in contemplation of law, but in actual physical fact.