KUNJO MANDAL Vs. SARJU RAM MARWARI

JUDGEMENT

(1.) Criminal Revision No. 525 of 1938 relates to an application by the first party in a proceeding had in the Court of the Sub-divisional Officer of Madhipura at Supaul under Section 145, Criminal P.C. The dispute which led to the proceeding:, arose out of the collection of certain fees-called khutagarai, arhat and keali, levied in respect of boats bringing grain and moored in a shallow channel in a locality known as Jagir Lowa Lagam Amanat Sircar, Tauzi Nos. 428, 5050 and 5955. These tauzis belong to the proprietor who is included in the first party along with his lessee. I understand that Jagir Lowa Lagam Amanat Sircar lies within the ambit of Mauza Ghosai, Tauzi No. 3306, and the lessee from the proprietor of this tauzi is the leading member of the second party.

(2.) The Sub-divisional Officer considered the evidence before him and came to- the conclusion that arhat, keali and khutagarai are realized from the entire village Ghosai including the three tauzis of, the first party by the lessees of the second party and are not collected by the lessees of the first party. An application against his order was made to the Sessions Judge in revision by the first party but the learned Additional Sessions Judge dismissed it. Mr. Jha, who appears here for the petitioners first party, has raised two points. The first is that the Sessions Judge has not discussed the evidence of the second party. The contention overlooks the fact that the first party were not entitled to anything of the kind at the hands of the Sessions Judge at all. It was not a case which was open to appeal, and the learned Judge only dealt with the points that were pressed before him. The trial Court dealt with the evidence of both parties in detail and arrived at its own finding, and the petitioners before me failed to displace that finding, as we see from the judgment of the Sessions Judge.

(3.) The second point raised by Mr. Jha before me is that the fees in dispute do- not come within the definition of "land or water" in Sub-section (2) of Section 145, Criminal P.C. In support of this contention he cited such rulings as Ram Saran v. Raghu Nandan (1911) 38 Cal. 387, Ramroop Mahton V/s. Mano Mian A.I.R (1934) Pat 86 and Narayan Misser V/s. Bhugwan Misser (1906) 3 Cri.L.J. 137. The channel where the boats are moored, and mooring and other fees levied, lies, I understand, within the tauzis of the first party, which tauzis themselves lie within the ambit of the mauza Ghosai, forming tauzi No. 3306, on the strength of the title to which the second party have been collecting the fees. The fees are thus dissociated from the ownership of the site, and it may well be that Mr. Jha is right in saying that they are not included within the expression "land or water" as used in Sub-section (1) of Section 45 and explained in Sub-section (2) of that Section. But it is obvious that this by itself would be no reason for interfering with the order passed by the Sub-divisional Magistrate in favour of the second party. Where Section 145 does not apply, Section 147 may, and proceedings under, the latter Section are carried on in the same manner as proceedings under the former. This is clear from the terms of Section 147 itself and is also supported by authorities. In re Amarsang Shivsangji A.I.R (1924) . Bom. 452 for instance, which has been cited by the learned Assistant Government Advocate appearing on behalf of the opposite party, an order passed under Section 145 was upheld by the High Court under Sec. 147. The two points raised by Mr. Jha therefore fail, and the application in revision must be dismissed.