This is a reference by the Addl. Sessions Judge at Jammu recommending that the order of the first class Magistrate at Ramban dated 17th April 1959 directing attachment of property in proceedings under S. 147 of the Code of Criminal Procedure be set aside.

(2) Chuni Lal, applicant, and Ram Lal and Sriniwas, non-applicants, live in adjacent houses. There is a common lane in front of their houses, which stand on a higher level than the lane. A flight of steps is alleged to have been in existence to enable them to get in to their houses from the lane. Chuni Lal complained that his right to use this flight of steps had been challenged by Ram Lal and Sriniwas. He claimed that he had the right of user of the steps to go to his house. The threatened interference by Ramlal and Sriniwas with his right was alleged to be likely to cause a breach of the peace. On these main allegations he made an application on 14th April 1959 under S. 147 of the Code of Criminal Procedure to the first class Magistrate at Ramban, On 17th April 1959 the Magistrate passed an order in the following words:

"The property in dispute be attached and kept on Supardnama in view of the danger of a breach of the peace.

Ramlal and Sriniwas who were aggrieved by this order of attachment moved the Addl. Sessions Judge at Jammu in revision. The learned Judge in a well-considered order has recommended to the High Court that the order of the Magistrate be set aside.

(3) The learned counsel for the applicant has strenuously attempted to support the order in question. His argument is based in the main on the last part of sub-s. (1) of S. 147 of the Code of Criminal Procedure, namely, that "the provisions of that section (S. 145) shall, as far as may be, be applicable in the case of such enquiry." It is pointed out that the second proviso to sub-s. (4) of S. 145 permits a Magistrate to attach the subject of dispute pending his final decision. The power which the Magistrate undoubtedly has under the second proviso to S. 145(4) can, it is contended, be well exercised even if he is conducting an enquiry under S. 147.

I am however wholly unable to accede to this argument which overlooks the scope and subject-matter of an enquiry under S. 147 and that under S. 145. S. 145 in terms applies to an inquiry relating to a dispute concerning any land or water or the boundaries thereof, whereas S. 147 deals with a dispute regarding any alleged right of user of any land or water. In other words, while S. 145 relates to land or water, S. 147 deals only with rights of user of land or water. Again, S. 145 is concerned with immovable property as such, whereas S. 147 is devoted to certain rights of user of immovable property.

The question of the actual possession of immovable property is a cardinal factor in an inquiry under S. 145; but S. 147 does not have regard to actual possession of any immovable property. The scope of the two sections, therefore, markedly differs as does the subject-matter of the inquiry under the two sections. The provisions in S. 145 empowering a Magistrate to attach the subject of dispute cannot be dissociated from the subject matter of the inquiry and the question of possession involved in such inquiry. To import the attachment provision of S. 145 into S. 147 would be to introduce some-thing into the latter section which is really not germane to it.

Attachment of immovable property necessarily involves dispossession which can take place only when we are dealing with concrete tangible property. Equally so, transference of actual possession to another person can take place only in the case of property which is capable of actual physical possession and enjoyment. Neither physical dispossession nor transference of actual possession can possibly take place in the case of abstract rights which are incapable of actual physical possession. Rights of user of land or water with which S. 147 is concerned are such abstract rights as cannot be actually taken possession of or put into th

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