Patna High Court
Chaturgun Turha And Ors. vs Jamadar Mian on 22 December, 1960
Equivalent citations: AIR1961PAT374, 1961CRILJ374, AIR 1961 PATNA 374, 1961 BLJR 350 ILR 40 PAT 715, ILR 40 PAT 715
JUDGMENT U.N. Sinha, J.
1. This is an application by the second party in a proceeding under Section 147 of the Code of Criminal Procedure. It is directed against the order of the learned Magistrate dated the 10th of September, 1957, by which he has prohibited the second party from interfering with the exercise of a right of easement claimed by the first party to the proceeding.
In order to make his order effective, the learned Magistrate has directed the second party to remove an obstruction said to have been erected by them, by the 10th of October, 1957, failing which it is stated that the second party will be liable to prosecution under Section 188 of the Indian Penal Code. Being aggrieved by the order of the learned Magistrate, the petitioners had moved the learned Sessions Judge, asking him to make a reference to this court, in order that the order of the learned Magistrate may be set aside. The learned Sessions Judge has refused to make such a reference.
2. The facts, shortly speaking, are as follows: The case of the first party was that he had his residential house in village Mahadeva and the drain water of his house used to flow towards north and used to be discharged, from time immemorial, into Plot No 203 belonging to the second Party. On the 28th of October, 1956, the second party erected a bund on their land resulting in complete stoppage of the flow of the drain water from the house of the first party.
The first party had Protested and had opposed the construction of the bund in question, but the second party had been adamant in their attitude, with the result that there was an apprehension of a breach of peace. The first party Prayed that action may be taken by the learned Magistrate under Section 147 of the Code of Criminal Procedure. The case of the second party was that plot No. 203 was their kasht land upon which they grow different kinds of crops and vegetables.
For the protection of their crop a bund exists on the said plot for a long time. The second party used to repair the bund from time to time and the drain water from the house of the first party never flowed into plot No. 203. According to the second party, the drain water from the house of the first party used to flow towards west. The case of the second party further was that, over the flow of the drain water from the house of the first party there had been some dispute between the latter and one Satnarain Nonia which dispute had been settled on compromise between them.
3. Upon the allegations stated above, a proceeding under Section 147 of the Code of Criminal Procedure was drawn up and both the parties adduced evidence before the learned Magistrate in support of their respective cases. Upon a consideration of the evidence adduced before him, the learned Magistrate has held that the first party had successfully proved his right of easement since time immemorial and that an interference with the right was likely to lead to breach of Peace. The learned Magistrate has, therefore, passed the order complained of.
4. In order to appreciate the contention raised in this court, I will quote the exact order passed by the learned Magistrate; namely :
"Any interference with the exercise of right is therefore prohibited Under Section 147 (2) Cr. P. C. In order to make "this Prohibitory order effective, I hereby direct the 2nd party to remove the obstruction by 10-10-57 failing which they will be liable to prosecution Under Section 188 I. P. C."
5. Two Points have been urged in this court by learned counsel appearing for the petitioners. The first point urged is that the learned Magistrate has not given any finding that the right claimed by the first party had been exercised within three months next before the institution of the enquiry, the right claimed by the first party being one that was exercisable at all times of the year.
Our attention has been drawn to the proviso to Sec 147 Sub-section (2) of -the Code of Criminal Procedure, and it has been contended that in the absence of such a finding, the order passed by the learned Magistrate is one without jurisdiction. Secondly, it has been urged that under Section 147 of the Code of Criminal Procedure, the learned Magistrate had no jurisdiction to pass a mandatory order upon the petitioners asking them to remove the obstruction complained of, namely, the bund.
6. I will consider first as to whether the order of the learned Magistrate is defective in view of the proviso to Section 147 Sub-section (2) of the Code of Criminal Procedure. Sub-section (2) of Section 147 of the Code runs thus :
"(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right :
Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution."
It has been contended by learned counsel for the petitioners that the order of the learned Magistrate is without jurisdiction inasmuch as he has not given a finding required by the proviso, as mentioned earlier. Learned counsel has relied upon the decision of Trijogi Narain Singh v. Kamta Prasad, AIR 1955 Pat 265 and the decisions mentioned therein on this Point Reference has also been made to the following decisions of this court, namely, Md. Sayeed v. Sk. Sarafat (Cri Revn. No. 1339 of 1950, D/- 16-1-1951 (Pat)), Dasu Mian v. Pajgam Ali (Cri. Ref. No. 89 of 1950, D/- 11-5-1951 (Patna)) and Ramnagina Singh v. Debi Pd. Keshan (Cri. Ref No. 109 of 1953, D/- 30-3-1954 (Pat)).
There is no doubt whatsoever that the settled view of this court is, that, in the case where the right claimed is exercisable at all times of the year, an order will be without jurisdiction unless it is based upon a finding that the right claimed has been exercised within three months next before the institution of the enquiry. I will, therefore, consider the question whether the learned Magistrate, in the instant case, has based his decision upon a finding that the right claimed by the first party had been exercised within three months next before the institution of the enquiry. I will quote the following observations of the learned Magistrate :
(a) "Case of the first party in brief is that the drain water of his old residential house at village Mahadeva P. S. Siwan used to flow towards north in the land of the 2nd party since time immemorial. On 28-10-56 they erected a bundh in their land in spite of protest of the 1st party due to which the flow of water was completely stopped, thereby causing danger to the home."
(b) "It is, therefore, obvious that according to the case of the 1st party his drain water must have been flowing through the space lying in between the houses of Satnarain and the 2nd Party and ultimately falling in the latter's land."
(c) "Chaturgun Turha says that there is accumulation of dram water at the base of the bund. This is indication of the fact that this bund has caused obstruction to the usual flow of water. It is said by Patia Mistri (O. W. 2) that drain water of Jamadar Mian will fall in the land of Chaturgun if the bund is cut at that point."
(d) "They have all said that the house of the 1st party is in existence since long and the drain water is flowing on the north -in the land of the 2nd party since time immemorial."
(e) "As regards construction of bund it is stated by Jamadar Mian that it took place in the morning of 28-10-56. The 2nd party was in an aggressive mood when he raised protest"
(f) "It is urged on behalf of 2nd Party that discharge of offal and putrid substance from the drain would damage his plot herbs and tendrils if they allow the first Party to flow water in that direction."
(g) "The facts and circumstances as well as the evidence on record clearly show that the 1st party has successfully proved his right of easement since time immemorial on the disputed land. The circumstances further indicate that an interference with this right may lead to breach of Peace."
(h) "Considering the entire evidence on record and fact and circumstances of the case I hold that the petitioner first party has a right to flow his drain water on the land of the 2nd Party as claimed by him."
(Chaturgun Turha, mentioned above, is peti-tioner No. 1 in this court and Jamadar Mian, mentioned above, is the first party in this case.)
7. The question is, whether upon the observations made by the learned Magistrate, quoted above, he has merely come to a finding that the first party had proved his right of easement claimed, or, whether over and above that, the learned Magistrate has come to a conclusion that the right claimed by the first party had been exercised within three months next before the institution of the enquiry. It may be mentioned that the rele-vant date, namely, the 28th of October, 1956, was within three months next before the institution of the present proceeding.
In my opinion, the learned Magistrate has based his order upon a conclusion that not only had the first party proved the right of easement claimed by him, but that he had proved exercise of such right within three months next before the institution of the enquiry. It appears to me that the decisions of this court, mentioned above, can be distinguished upon their facts. In Trijogi. Narain's Case, AIR 1955 Pat 265, the order passed by the Magistrate was in the following terms :
"Taking the entire evidence into consideration I am of the opinion that the balance of the evidence is in favour of the 1st party and that the right of 'Rasta' as claimed by the 1st party exists and I hereby order prohibiting any interference into the exercise of this right."
Upon a consideration of the point arising in that case, Banerji, J. stated thus :
"In the present Proceeding, the Magistrate has, in his final order, quoted above, indeed, found the existence of the right of way as claimed by the first party, but there is no sentence or phrase from which an inference can be drawn that he meant that the right of way had been exercised within three months from the date of institution of the enquiry."
The Case was, therefore, remanded by Banerji, J. for a reconsideration of the question whether the right had been exercised within three months before the institution of the enquiry. In the case of Md. Sayeed Cri. Revn, No. 1339 of 1950, D/-16-1-1951 (Pat), Das, J., as he then was stated thus :
"The right which the opposite party before me claimed was the right of Pasturage for the cattle of the village on this land. The learned Magistrate came to a finding that such a right existed. He did not, however, come to any finding whether the right had been exercised within three months next before the institution of the enquiry. It is worthy of note that, on behalf of the petitioner, evidence was given that the lands which had been settled with him in 1946 were cultivated by him and crops were grown thereon. That evidence has not been considered by the learned Magistrate. As a matter of fact, the learned Magistrate has not considered any evidence in detail. He has merely referred to the evidence in general, and, relying on the entry made in the remarks column of the record-of-rights prepared at the time of the last survey, he held that the land was parti from the time of the survey and had not been cultivated at any time before the settlement made with the Petitioner. That finding does not, however, amount to a finding with regard to the period of time referred to in tne proviso to subsection (2) of Section 147 of the Criminal Procedure Code."
In view of the observations quoted above, the order of the Magistrate in that case was set aside, as having been passed without jurisdiction. It was observed that if the Magistrate was satisfied that there was still a dispute likely to lead to an apprehension of the breach of the Peace, it was open to the learned Magistrate to initiate a fresh proceeding and then proceed in accordance with law. In the case of Dasu Mian, Cri. Ref. No. 89 of 1950, D/- 11-5-1951 (Pat), Reuben, J., as he then was, stated thus :
"The learned Magistrate considered only the right of the first party to irrigate from the disputed plot but omitted to consider whether the right claimed was exercised within the period indicated in the proviso to Sub-section (2)."
The case was accordingly remanded. In the case of Ramhagina Singh, Cri. Ref. No. 109 of 1953 D/- 30-3-1954 (Pat), Das, J., as he then was, stated thus :
"If the proviso is read with the substantive portion of Sub-section (2) of Section 147, Code of Criminal Procedure, it is manifest that the learned Magistrate can make an order under Sub-section (2) of Section 147 only when he is satisfied that the right claimed, if it is exercisable at all times of the year, has been exercised within three months next before the institution of the enquiry, or if the right is exercisable only at Particular seasons or on particular occasions, the right has been exercised during the last of such seasons or on the last of such occasions before the institution of the enquiry."
Das, J., after referring to the following observations of the learned Magistrate ''Thus, in brief it is clear that the slope of the country is from south to the north--water comes from south to north, that is, from Lohagarh to 652 which is a water reservoir of first party and all lands of the first party are irrigated which was disturbed last year."
held as follows :
"I do not read the aforesaid passage as a clear finding that the rights which the first party claimed were exercised on the last occasion or at the last season. The learned Magistrate has used the word 'disturbed' and has not explained what that word meant. It is obvious that this is a case in which the rights claimed are not exercisable at all times of the year; they are exercisable only at particular seasons or on particular occasions. Therefore, it was necessary for the learned Magistrate to give a clear finding as to whether the rights claimed by the first party had been exercised during the last of such seasons or on the last of such occasions before the institution of the inquiry."
It will thus appear from Trijogi Narain Singh's case, AIR 1955 Pat. 265 and from the case ot Md. Sayeed, Cri. Revn. No. 1339 of 1950 D/.16-l-1951 (Pat) and Dasu Mian, Cri. Ref. No 89 of 1950 D/- 11-5-51 (Pat) (supra), that the orders of the Magistrates in those cases were set aside because the learned Magistrates were unmindful of the requirements under the proviso to Section 147 Sub-section (2) of the Code, that no order under Section 147 of the Code of Criminal Procedure can be passed at all, unless the right claimed has been exercised, within three months next before the institution of the inquiry.
In the case of Ramnagina Singh, Cri. Ref. No. 109 of 1953, D/- 30-3-1954 (Pat) (supra), Das, J., was of the opinion that the learned Magistrate's finding, quoted above was not a clear finding that the first party in that case had exercised the right claimed on the last occasion or during the last season, the right claimed being exercisable only at particular seasons or on particular occasions. In the instant case, it is clear to me that the learned Magistrate was aware of the legal position that he had no jurisdiction to pass the order that he has passed, unless he had come to the conclusion that the right had been exercised within three months next before the institution of the inquiry.
From the quotations made above from the judgment and order of the learned Magistrate in the instant case, it is clear that the learned Magistrate had in mind the first party's case, that he had exercised the right of easement claimed, up to the 28th of October, 1956, when the discharge of the drain water from the house of the first party was stopped on account of the bund erected by the second party. In my opinion, the learned Magistrate, in the instant case, has really come to a conclusion that the first party had. exercised the right of easement claimed, from time immemorial continuously up to the 28th of October, 1956, which was within three months next before the institution of the inquiry.
Although the learned Magistrate has not said, in so many words, that he has come to a finding that the right claimed had been exercised within the required period, but the finding is implicit in his conclusion that the first party had the right to the flow of his drain water on the land of the second party, as claimed by him. In the result, I will reject the first contention raised by learned Counsel for the petitioners and hold that the order of the learned Magistrate complained of. is based upon his conclusion that the first party had exercised the right claimed by him, within three months-next before the institution of the inquiry,
8. The second point raised by learned Counsel for the petitioners is of general importance and requires a careful consideration. The question as to whether a Magistrate, acting under Section 147 of the Code of Criminal Procedure, can pass a mandatory order in the sense of asking one of the parties before him to do a positive act, has been considered by many of the High Courts, and it appears that the views expressed are not uniform. The two leading decisions upon this question, apart from a decision of a Division Bench of this Court in the case of Sitaram v. Faiyaz Hussain, 1944 Pat W. N. 321, are the Full Bench decisions of Hem Chandra v. Abdur Rahman AIR 1942 Cal 244 (FB), and Abdul Wahab Khan v. Md. Hamid Ullah, AIR 1951 All 238 (FB). So far as the Calcutta High Court is concerned, its conflicting views have now been settled by Hem Chandra Banerji's case, AIR 1942 Cal 244 (FB) (supra). It has been held in Hem Chandra Banerji's case, AIR 1942 Cal 244 (FB) as follows:
"It is one thing to make an order prohibiting the doing of an act, it is another to order the doing of an act. The sub-section allows the former, but it does not allow the latter ..... With regard to the cases that have taken the contrary view it is sufficient, in my opinion, to say that what the sub-section allows, the Magistrate may do and nothing else. If the aggrieved party wishes any fuller or further relief from the Courts the Civil Courts are open to him and the remedy is a mandatory injunction."
The reference to the sub-section in the above quota-tion is to Sub-section (2) of Section 147 of the Code of Criminal Procedure. The only other decision of the Calcutta High Court later than Hem Chandra Banerji's case AIR 1942 Cal 244 (FB) (supra) to which our attention has been drawn, is a Division Bench decision in the case of Kirti Bhusan v. Lakshman Dey, AIR 1959 Cal. 314. In Kirti Bhusan's case, AIR 1959 Cal 314, it was stated thus:
"Of course, if the Magistrate finds that a right of way actually existed, that it was already obstruct-
ed before the proceeding was drawn up and it he prohibits any interference with the exercise of such a right, that prohibition becomes totally ineffective when the Magistrate is not empowered to take steps to see that the obstruction already caused is removed. This anomaly was pointed out in the Full Bench case of the Allahabad High Court in 52 Cr. LJ 795 : AIR 1951 AH. 238, and it was held therein that in order to make a prohibitory order effective, the Magistrate has power to pass an order for the removal of obstruction, if without its removal the prohibitory order cannot be effectively enforced. Although that is perfectly a rational view to take there is an undoubted contrast between Section 147 as it stood before the amendment in 1923 and the section as it stands now. Before Section 147 was amended in 1923, it empowered a Magistrate to make an order permit-ing a thing to be done or directing that a thing shall not be done whereas now all that the section permits the Magistrate to do is to pass a prohibitory order and nothing more. That being so, the Statute leaves no room for doubt as to the scope of the Magistrate's powers under Section 147 Cr. P. C. as amended. In. any event, as we are bound to follow the Full Bench case of this High Court, it has got to be held that the learned Magistrate was wrong in passing the order that the second party must remove again the fencing and pagar.'' The order of the learned Magistrate, which was held to be wrong, in Kirti Bhusan's case, AIR 1959 Cal' 314, was in the following terms:
"It is ordered Under Section 147 (2) Cr. P. C. that the second party is hereby prohibited from interfering with the first party's right of way with carts over the proceeding pathway between C. S. plots Nos. 1185 and 1186 of Mouza Dihar and in order to make the above order effective, the second party is further ordered that the second party shall within 7 days from the service of the order upon the second party, remove the fencing and pagar constructed by him so that there remains no obstruction to the existing right of pathway and passage of carts, failing which the fencing and pagar will be removed at the cost which will be the cost of the proceeding."
Before I deal with Abdul Wahab Khan's case, AIR 1951 All 238 (FB) (supra), which has subsequently been followed in some of the other High Courts, I will refer to the Division Bench decision of this Court in the case of 1944 Pat WN 321. The learned Magistrate in that case had passed the following order :--
"I therefore under Section 147 (2) Cr. P. C. prohibit the 2nd party from interfering with the passage of the Tazia and order him to remove the wall from the land so as to allow sufficient space for the Tazia to pass".
In dealing with the jurisdiction of the learned Magistrate under Section 147 of the Cr. P. C., Beevor J., stated thus:
"Now although there has been some conflict in the decisions of the Calcutta High Court on different occasions as to whether the Magistrate could pass an order in the nature of mandatory injunction under Section 147 Cr. P. C., those decisions were considered in the Full Bench ot five judges, in the above case reported in 46 Cal WN 452 : AIR 1942 Cal 244 (FB). The Madras High Court has, however, taken a different view in certain cases which were cited before us. The actual wording of Section 147 (2) is :
"If it appears to such Magistrate that such right exists, the may make an order prohibiting any interference with the exercise of such right.' Derbyshire, C. J., while delivering the judgment in the Full Bench case stated:
'It is one thing to make an order prohibiting the doing of an act; it is another to order the doing of an act. The Sub-section allows the former but it does not allow the latter.' With this dictum I respectfully agree and I also think that the wording of Sub-section (2) of Section 147 clearly indicates that so far as future acts of interference are concerned the Magistrate was within his power to issue an order but there as nothing, in my opinion, in that sub-section which suggests that a Magistrate has any power to issue any order in respect of something which has already been. done. There is no decision of this court which is directly in point. Ross, J. sitting singly in the case of Ramdhan Pun v. Brahma-deo Lal, 10 Pat LT 376: (AIR 1929 Pat 351) approved of an order which prohibited the first party in the proceedings before him from interfering with the exercise of a right to water and also restraining that party from interfering with the opposite party in closing the cutting in the bank of the pyne. That case is to my minds clearly distinguishable, and I think that the user of a right of water continuing through the pyne naturally implies to keep the bank of the pyne in repair. It is not, to my mind, clear that a right to user Or a right of way which is not a public highway necessarily includes, as an ordinary incident, a right to remove such obstruction as a wall placed accross the way. I. therefore, consider that the portion of the Magistrate's order which directed second party to remove a portion of his wall is invalid."
9. Learned Counsel for the opposite party has submitted that in view of the subsequent Full Bench decision of the Allahabad High Court in the case of AIR 1931 All. 238, which has been followed by the Assam High Court, the Mysore High Court and the Madras High Court, the view expressed by this Court in the case of 1944 Pat WN 321, requires re-consideration. Learned Counsel submits that this point should now be ie-opened and re-considered by a larger Bench of this Court.
It may be mentioned here that in an unreport-ed decision of this Court in the case of Mohan Mahto v. Dwarika Pd. Singh, Cri. Ref. No. 54 of 1951, D/- 3-12-1951 (Pat), Das, J., as he then was, made a reference to Sitaram's case, 1944 Pat WN 321 (supra) as well as the Allahabad Full Bench case, AIR 1951 All 238. I will deal with Mohan Mahto's case, Cri. Ref. No. 54 of 1951, D/- 3-12-1951 (Pat), in due course. The leading decision of Abdul Wahab Khan's case, AIR 1951 All 238 (FB) was given by Agarwala, J. After reviewing a large number of decisions including that of Hem Chandra Baner-ji's case, AIR 1942 Cal. 244 (supra), Agarwala; J. stated as follows:
"It has been urged by the Govt. Advocate that no positive order can be passed under Section 147 and that the order must be negative in form as is given in Form No. 24. No doubt under Section 147 the jurisdiction of a Magistrate is confined only to the passing of prohibitory orders which are generally in a negative form and he has no power to issue every kind of positive order to secure the exercise of the right of user by one party. But in order to make a prohibitory order effective, as has already been discussed, the Magistrate has power to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. Thus a Magistrate has no power to order a party to rebuild a drain where he has demolished one. But he has power to order the removal of an obstruction, like a wall, so that the exercise of the right of user by the other party may not be interrupted.
It has been suggested that no explicit order for the removal of an obstruction should be passed and that the order that should be passed should be one prohibiting the applicant from interfering with the opposite party's right of user and thereby leaving the question of the removal of the wall to implication only. I emphatically disagree with this view. What the Court has power to do implicitly, it must have power to do explicitly and indeed, in my view, it is much better that the Court passes an explicit order rather than to leave it to implication. Form No. 24 and other Forms given in the Criminal P. C. are not meant to be exhaustive.
They are liable to be altered and amended according to the exigencies of a particular case."
In appears, however, from the decisions of the other two learned Judges of the Allahabad High Court, namely, of Malik, C. J. and Mustaq Ahmad, J. that they did not agree with all the reasonings given by Agarwala, J. Malik, C. J., stated thus:
"I generally agree with what my brother Agarwala has said in his Judgment. I would, however, like to guard myself against being understood to mean that, under Section 147 Cr. P. C. Magistrates have jurisdiction to issue orders even in the nature of mandatory injunctions. It must be borne in mind that Section 147 and similar other sections were not intended to give to the Magistrates power to decide disputes relating to rights of the parties. The sole object behind these sections is to prevent breaches of the peace, and if a Magistrate finds that there is a likelihood of the breach of the peace and that is due prima facie to the wrongful act of a person, he can direct that person to desist from doing the wrongful act. In directing him to desist from doing a wrongful act, everything incidental thereto must be included, that is, if it is necessary for the wrong-doer to remove any obstruction that he has placed in the way of the enjoyment of the right of the other side, he must also remove that. In passing such orders the Magistrates must, however, bear in mind that their jurisdiction under these sections is confined only to preventing breaches of the peace and they are not expected to hold complicated enquiries, as to title and try to adjust the same. Their orders are intended to be only of a temporary nature till the rights of the parties are finally determined by competent Courts, So far as I can see from the judgments of the lower courts no substantial construction had been built. Some sort of a mud wall was being put up to block the way when the opposite party filed his application under Section 147.
In the circumstances, I agree in the order proposed'."
It is clear to my mind that Malik, C. J. was not of the opinion that a Magistrate purporting to act tinder Section 147 of the Cr. P. C., had jurisdiction to issue orders in the nature of mandatory injunction in every case and under all circumstances. Mustaq Ahmad, J., agreed with Malik C. J.f stating thus:
"I also agree subject to the safeguard mentioned by Hon. C. J. in. his separate order."
It is, therefore, clear that Malik, C. J. and Mustaq Ahmad, J. were not fully in agreement with Agarwala, J. This has also been noticed in the decision of Angappa Gounder v. Krishna Swami Goun-der, AIR 1959 Mad 28, where Basheer Ahmad Sayeed, J.t stated thus;
"It is to be noticed that in this decision the leading judgment of Agarwala J. went to the extent of saying that the Magistrate had power to issue Mandatory injunctions under S, 147 The learned Chief Justice Malik, C. J. and Mustaq Ahmad, J. did not wholly concur with the view expressed by Agarwala, J., but qualified their concurrence, which seems to us worthwhile noticing."
In Abdul Wahab Khan's case, AIR 1951 All. 238 (FB). the only decision of this Court that was notic-
ed was the decision of AIR 1929 Pat 351. Dealing with Ramdhan's case AIR 1929 Pat. 351, Agar-wala, J. stated thus:
"The Patna H. C. has, however, expressed the opinion that the Magistrate had jurisdiction to restrain a party from preventing the applicant from himself removing the obstruction, which in fact means that the court had jurisdiction to so frame its order as to compel the removal of the obstruction, vide AIR 1929 Pat. 351: 121 Ind Cas 461."
His Lordship's attention was not drawn to the Division Bench decision of this Court in the case of 1944 Patna WN 321. Probably because Sitaram Singh's case is not reported in any other journal except the Patna Weekly Notes. Beevor, J. in Sitaram's case, 1944 Pat WN 351, had occasion to deal with Ram-dhan's case, AIR 1929 Pat. 351 as will appear from the quotation given above. Ramdhan's case, AIR 1929 Pat. 351 was distinguished by Beevor, J. in considering the question as to whether a Magistrate could direct any of the parties to remove a portion of his wall.
10. I will now deal with the decisions of the other High Courts which have followed the Full Bench decision of the Allahabad High Court in Abdul Wahab Khan's case, AIR 1951 All 238. There are two decisions of the Assam High Court, one reported in Debendra Kumar Das v. Satish Chandra Das, AIR 1958 Assam 112 and the other reported in Bhubaneswari Goswami v. Kaliram Bur-man, AIR 1960 Assam 90. It appears that the point in controversy in the instant case, had not really arisen in the case of AIR 1958 Assam 112.
In Debendra Kumar's case, AIR 1958 Assam 112, the Magistrate, by the impugned order, found in favour of the first party and directed the second party to refrain from obstructing the passage of the first party over a path, but refused to pass any order for the removal of the fencing that had already been erected against the Magistrate's order- The second party filed an application under Section 435 of the Code of Criminal Procedure, in consequence of which a reference was made to the Assam High Court by the Additional Judge, under Section 438 of the Code of Criminal Procedure.
Three points were urged in the High Court on behalf of the second party, namely, CD that the drawing up of the proceeding itself was illegal, since there was no material on recnrd to prove that there was any likelihood of the breach of the peace, as is the first condition for drawing up a proceeding under Section 147 of the Code of Criminal Procedure, (2) that the procedure as prescribed under Section 147(1) of the Code of Criminal Procedure was not followed inasmuch as the parties were not asked to show cause, and (3) that there was no finding to the effect, as is required under proviso to Section 147 of the Code of Criminal Procedure, that the first party had exercised the rights within three months next before the institution of the inquiry.
The only argument that was advanced on behalf of the first party was that even though some irregularities had been committed in the proceeding, no prejudice had been caused to the second party in any form, and ag such the order of the learned Magistrate should not be interfered with. The first contention on behalf of the second party was not accepted by their Lordships of the Assam High Court. The second contention raised was held to be of substance. It was held that the order passed by the learned Magistrate in favour of the first party was not quite justified in view of the fact that proper procedure had not been followed. In dealing with the third contention, however, it was held thus :--
"In regard to the third contention namely, as to the form in which the order has been passed by the learned Magistrate, we are not quite satisfied with the order. No sooner a court passes an order which is meant to be carried out, the law gives the court sufficient power to take such measures as may give the order a validity not only in the eye of law but that it may be also effective and useful to the party in whose favour it has been passed.
In other words, if a right of way is found in favour of the first party, the fencing or any other obstruction raised has to be removed by the order of the court; otherwise, the order becomes ineffective. This view finds favour with the Allahabad High Court Ref. AIR 1951 All 238 (FB)."
It appears from what I have mentioned above, that the third contention raised on behalf of the second party was dealt with by their Lordships of the Assam High Court in their own way, and thereafter it was held that the case should go back for the purpose of re-consideration and that in re-considering the matter, the court should come to a finding whether the right claimed had been exercised within three months next before the institution of the inquiry or not. In deciding the point covered by Abdul Wahab Khan's case, AIR 1951 All 238 (FB), their Lordships of the Assam High Court did not deal with any other decision of any other High Court on the point. It cannot, therefore, be held that the first decision of the Assam High Court had really considered the question that falls for decision in the instant case.
11. The second decision of the Assam High Court in the case of AIR 1960 Assam 90 is a decision of a learned single Judge of that Court, Reference was made by G. Mehrotra, J, to the Full Bench decisions of Hem Chandra Banerji, AIR 1942 Cal 244 and Abdul Wahab Khan. AIR 1951 All 238 (FB), as well as to Debendra Kumar's case, AIR 1958 Assam 112. G. Mehrotra, J., in Bhubaneshwari's case, AIR 1960 Assam 90, also noticed the guarded opinion of Malik, C. J. in Abdul Wahab Khan's case, AIR 1951 All 238 (FB).
He also noticed that Mustaq Ahmad, J. had agreed with Malik C. J. in deciding about the power of a Magistrate. G. Mehrotra, J. has however, held that each case will have to be decided on its own facts and circumstances and that the order of the Magistrate will have to be judged in the light of the circumstances of each case. It appears that although the learned Judge has given his views in the matter, he has really left this question open by stating thus:
"As in my opinion there is substance in the first point raised by the petitioner, it is not necessary to decide whether in the circumstances of the present case the Magistrate was justified in passing the mandatory order or not. The Magistrate also does not appear to have applied his mind to the question whether the first party had exercised the right claimed by him within three months of the date of the preliminary order, as required under the proviso to Sub-section (2) ot Section 147."
The first point mentioned by his Lordship was that Section 147 of the Code of Criminal Procedure did not contemplate the case of interference with the user of a portion of ones own land. This point was based on the following facts. It was tine case of the first party that the second party had constructed a wall on the land of the first party causing considerable damage to the house of the first party, blocking a passage which was used by the first party for the purpose of repairing walls of his house. The second party had denied that she had constructed any wall on the land of the first party.
The Magistrate, however, held that the wall had been constructed on the land of the first party, narrowing down the passage as alleged. In view of this finding, the Magistrate had passed a mandatory order directing the second party to demolish the wall in question within seven days of the order. It cannot, therefore, be held that the decision of Bhubaneshwari Goswami's case, AIR 1960 Assam 90 fa really an authority upon the question of law which has arisen in the instant case. In any event, Bhubaneshwari Goswami's case, AIR 1960 Assam 90 is quite distinguishable on the facts mentioned above.
12. The recent view of the Madras High Court is represented by the case of AIR 1959 Mad 28. After a review of the Full Bench , decisions of the Calcutta High Court and of the Allahabad High Court, their Lordships of the Madras High Court approved of the view taken in the Full Bench decision of the Allahabad High Court, as mentioned below. It may again be noted here that the difference between the extreme view of Agarwala, J.3, and the views of Malik, C. J., and Mustaq Ahmad, J. in the Allahabad Full Bench decision was also noticed in Angappa Gounder's case, AIR 1959 Mad 28. In effect, it appears that in Angappa Gounder's case, AIR 1959 Mad 28, their Lordships of the Madras High Court reaily followed the consistent view prevailing in the Madras High Court, in spite of the amendment of Section 147 of the Code of Criminal Procedure in 1923. With respect to the Full Bench decision of the Allahabad High Court, Basheer Ahmad Sayeed, J. stated thus in Angappa Gounder's case, AIR 1959 Mad 28:
"The decision that is in accord with the decisions of our High Court is the one reported in AIR 1951 All 238 (FB). It may be mentioned hereunder that this decision took a far. more extreme view than the view taken in the decisions of this Court.
* * * * * We think the observation of the learned Chief Justice of the Allahabad High Court accords with our own view on the point under consideration and the view that has been generally held by this court in the previous decisions, which we have referred to above."
Moreover, the facts in Angappa Gounder's case, AIR 1959 Mad 28 also appear to be distinguishable, as will appear from the observations of Basheer Ahmad Sayeed, J., quoted below :--
"It is true as contended by the learned counsel for the petitioners that care should be taken always that Criminal Courts do not encroach upon the jurisdiction of the civil courts and that criminal courts should decide the issue of prohibitive orders in such case upon the facts and the nature of the right that has been infringed or violated by the party against whom the petition has been preferred. The prohibitory Order that (is) to be issued by the Magistrate will therefore depend upon the nature of each case and the circumstances in which the aggrieved party has approached the Court.
In the present case, just before the application was filed before the Magistrate, the evidence is to the effect that the Channel through which water was being carried from Athu tholai by the A party to their lands, was obliterated and if this channel was to be restored by the A party itself, sorely there was a likelihood of a breach of the peace and such breach of the peace was the very thing intended to be prevented by the exercise of the powers given to the magistrate under Section 147.
But in preventing the breach of the peace it is also intended under this section that in the exercise of its right the party which approaches the Court should not be given a merely bare paper order to the effect that the other party, which has committed an infringement of the right, is prohibited or prevented from interfering with the exercise of that right. Such an order in the circumstances like the present where the channel has been obliterated will certainly be of no avail, and the party need not approach the court if it were merely to content itself with obtaining an order prohibiting the counter party from interfering with the exercise of the right.
Obviously the counter party is not likely to do anything further after having already obliterated the channel itself. The order of prohibition becomes then only futile. At the same time, it may not also be quite in the interests of peace and its maintenance that there should be a power given or a right vested in the aggrieved party approaching the magistrate that he should be entitled to restore the channel himself, in which case there is again the possibility of the counter petitioner interfering and committing breach of the peace."
The actual direction passed by the Madras High Court in remanding Angappa Gounder's case, AIR 1959 Mad 28, was as follows :--
"If the nature of the channel and its obstruction has been such that it could be restored without any great cost or inconvenience to the counter petitioners, it must be just and reces-sary that they should be directed to restore the channel in order that the A party might exercise their right to the taking of water to their lands through the channel and a reasonable time should be given to the B party to restore the channel. In case the B party fails to restore the channel within the given time, then it will be open to the Magistrate to appoint a Commissioner to see that the channel is restored at the cost of the B party."
Panchapakesa Ayyar, J., in the same case, stated thus :--
"It may be that the wide powers conferred under the unamended section have been restricted to some extent by the amended section, since the Magistrate apting under Section 147(2), hag not got the same wide powers regarding mandatory injunctions as a civil court, as remarked by Malik, C. J. in AIR 1951 All 238 (FB), Thus, for instance, if a person's right to ancient rights has been infringed by a neighbour building a palace costing a lakh on his own adjoining ground it may not be proper for the magistrate, acting under Section 147 (2) Crl. K C. to direct him to pull down that palace. So too, if in a dispute between two parties over a piece of land, one of the parties has pulled down a costly building on it, claiming it to be his, but claimed by the other to be his, it may not be proper for the magistrate, acting under Section 147(2), to direct the reconstruction of that building by the offending party."
In dealing with the view of the Madras High Court on this question, it may be noted that the attention of their Lordships of this Court, deciding the case of 1944 Pat WN 321 was drawn to the decision of the Madras High Court up to that time and their Lordships of this Court were not inclined to accept the view of the Madras High. Court, in preference to the view expressed in the Full Bench decision of the Calcutta High Court in Hem Chandra Banerji's case, AIR 1942 Cal 244 (FB).
In Angappa Gounder's case, AIR 1959 Mad 28 also, it was stated that the view expressed by Pandalai, J. in the case of Venkanna v. Venkata Surya Neeladri Rao, AIR 1930 Mad 865 was acceptable to their Lordships deciding the latter case in 1959. I must take it that in the case ot Sitaram, 1944 Pat WN 321, the view expressed in the case of Venkanna, AIR 1930 Mad 865 was not accepted although no specific reference was made to that decision.
13. In the case of Raghunath v. Yadav, -AIR 1959 Mys 177 it was held that the Magistrate is authorised to pass a mandatory order under Section 147 of the Code of Criminal Procedure directing the removal of an obstruction. The view expressed in the Full Bench decision of the Allahabad High Court was held to be preferable to the views expressed by the High Courts of Calcutta, Nagpur and Bombay. I will refer hereafter to the decisions of the Nagpur and Bombay High Courts.
It appears from the facts of Ragbunath's case, AIR 1959 Mys 177, that actually the decision therein was based upon the fact that the person complaining of the infringement of bis right of user, had no remedy inasmuch as he had not; been exercising the right within three months next before the institution of the inquiry. The conflict of decisions in various High Courts was, however, noticed by the learned single Judge de-
ciding Raghunath's case, AIR 1959 Mys 177 and reference was made to the decision of this Court in the case of AIR 1929 Pat 351.
No reference was, howayer, made to the Division Bench decision of the Court in the case of 1944 Pat WN 321. Moreover, in Raghunath's case, AIR 1959 Mys 177 it does not appear that the learned Judge discussed this particular ques tion in any detail, except holding that the Alla habad view expressed in AIR 1951 All .238 (FB) was preferable.
14. The decision of the Nagpur High Court in the case of King Emperor v. Abdullah, AIR 1949 Nag 275 was, of course, made before the Full Bench decision of the Allahabad High Court in Abdul Wahab's case, AIR 1951 All 238 (FB). The learned single Judge of the Nagpur High Court dealt with the decisions of the Nagpur High Court upon the point and the Full Bench decision of the Calcutta High Court in Hem Chandra Banerji's case, AIR 1942 Cal 244 (FB).
It was held that in a proceeding under Sections 144 and 147 of the Code of Criminal Procedure, all that the Magistrate could do, in that particular case, was to make an order prohibiting any interference with the right of way which in his opinion, existed, what the Magistrate had done in the Nagpur case was that he had passed an order to the effect that an area of land be kept open and that one of the parties be pufr in possession of it until evicted therefrom in due course of law. The learned Magistrate's order was set aside and was replaced fay an order pro-hibiting any interference with the exercise of the right of user of the land in question.
15. The decision of the Bombay High Court, mentioned above, is in the case of Shantilal Maganlal v. Dahvabhai Gordhanbhai, AIR 1954 Bom 368. In that case what the Magistrate had done was that he had passed an order prohibiting one of the parties from interfering with the exercise of a particular right and had also ordered that party to forthwith remove a fledge and make a way fay which carts and bullocks might pass safely. Upon a reference made to the Bombay High Court, that part of the order of the learned Magistrate, directing removal of the hedge and the making of way by which carts and bullocks might pass, was set aside.
The amendment of Section 147 of the Code of Criminal Procedure in 1923 was noticed by their Lordships of the Bombay High Court and a decision of the Madras High Court and the Full Bench decisions of the Calcutta High Court and the Allahabad High Court were considered. A decision of the Nagpur High Court reported in Usman AH v. Emperor, AIR 1938 Nag 297 was also considered. Their Lordships of the Bombay High Court, agreed with the views of their Lordships of the Calcutta and Nagpur High Courts, and Chainani, J., stated thus:
"The primary object of proceedings under this section is to prevent a breach of the paace and not to determine or enforce the rights of parties. An order under this section remains in force for a temporary period and is subject to the decision of a Civil Court. The Legislature might, therefore, have taken the view, when the section was revised in 1923, that it was not necessary to invest Magistrates with powers to undo things which had already been done, that it was sufficient to provide for prevention of fur-
ther interference with ,the enjoyment of a right and that if a party wanted more relief, such as a mandatory order to remove an existing obstruction, he should seek it in a civil Court."
Bavdekar, J., in his separate judgment stated thus:
"It has got to be remembered, besides that the section is aimed at prevention of a breach of the peace, it is not aimed at giving a person who comes to Court, such relief as he would be entitled to, if he were to go to a Court of law; and the Legislature may well have thought that it would be sufficient for the purpose it had in view if the Magistrate was empowered to prohibit the interference with the right, which he has found, without going to the length of ordering, by way of a mandatory injunction, the removal of of something which may have been constructed and may be obstructing the right of one of the parties."
16. The duly decision of the Lahore High Court which was relied upon by learned Counsel for the opposite party is the case of Ghumanda Singh v. Emperor, AIR 1941 Lahore 210. The learned single Judge of the Lahore High Court agreed with the observations made in the case reported in AIR 1930 Mad 865 and accepted the view of the Calcutta High Court in the case of Badridas Agarwala v. Sohanlal Oswal. AIR 1940 Cal 545. The decision of the Calcutta High Court reported in AIR 1940 Cal 545. was referred to in the Full Bench decision of. the Calcutta High Court, but was not approved by their Lordships of the Calcutta High Court. In Ghumanda Singh's case, AIR 1941 Lah 210 the order passed by the Magistrate was to the following effect:
"I, therefore, order that the walk and buildings erected on it should be removed, and the public way reinstated as before. If the buildings are not removed within 15 days from today they should be caused to be removed at the Government expense through the P.W.D. agency with the aid of the Police, Malout."
After considering the power of the Magistrate under Section 147 of the Code of Criminal Procedure, Skemp, J. stated thus:
"Nevertheless, I do not think the order ot the Magistrate can be maintained as it stands.
Sitting as a Magistrate to deal with a dispute alleged to be likely to cause a breach of the peace he made an order as if he were a Civil Judge who had exhaustively considered all the issues between the parties. At the suggestion of Mr. Amolak Ram for the complainants, I accept the revision to this extent, that, assuming' for the purposes of argument, that the conclusion of the Magistrate is correct, I make the order which he ought to have made in the words of form No. 24, Schedule 5, Criminal P. C. I do order that the present petitioners Ghumanda Singh, Partap Singh and Mehtab Singh, shall not retain possession of the said land in dispute alleged to be a public road to the exclusion of the enjoyment of the rights of user of the said public road until they shall obtain a decree or order of a competent Court adjudging them to be entitled to exclusive possession."
The only decision which remains to be considered is an unreported decision of this Court in. the case of Cri. Ref. No. 54 of 1951, D/- 3-12-1951 (Pat). After considering the decisions reported in. AIR 1929 Pat 351, 1944 Fat WN 321 and the Full Bench decision of the Allahabad High Court reported in AIR 1951 All 238 as also the Full Bench decision of the Calcutta High Court reported in AIR 1942 Gal 244 (equivalent to ILR (1942) 2 Cal 75), Das, J., as he then was, stated that on the view which had been accepted by this Court, the order of the learned Magistrate in that case had to be varied so as to put that in a prohibitory form as contemplated by Sub-Section (2) of Section 147 of the Code of Criminal Procedure.
With reference to the Full Bench decision ot the Allahabad High Court, it was stated that in view of the decisions of this Court referred to in the judgment, it was unnecessary to go to the extent to which the Full Bench decision of the Allahabad High Court had gone. Das, J. was also of the opinion, it seems, that the view of the-Full Bench decision of the Calcutta High Court had not been accepted to the fullest extent by this Court. For the reasons given by his Lordship, he was pleased to vary the order of the Magistrate, re-modelling it in a prohibitory form.
17. After a review of the decisions mentioned above, it appears to me, that the following conclusions emerge: The Full Bench decision of the Calcutta High Court, AIR 1942 Cal 244, has, clearly held that a Magistrate purporting to act under Section 147 of the Code of Criminal Procedure may do what Sub-section (2) of Section 147 of the Code of Criminal Procedure authorises him to do. Sub-section (2) of Section 147 of the Code of Criminal Procedure only authorises a Magistrate to prohibit any interference with the exercise of a right that may be held to exist. In that view of the matter, the words, "He is further ordered to remove the stable from the nath", were struck out by their Lordships of the Calcutta High Court from the order of the Magistrate which ran as follows:
"Thus I order that Abdur Rahman and his-family may use the path and Hem Chandra Banerji is prohibited to make any interference with the exercise of a right of way of Abdur Rail-man and his family. He is further ordered to remove the stable from the path."
This decision of the Full Bench of the Calcutta High Court was approved of and followed by the Division Bench of this Court in Sitaram's case, 1944 Pat WN 321.
It was held therein that the order of the learned Magistrate, quoted above, directing the second party to remove a portion of his wall, was an erroneous order. I concur in the view expressed in Sitaram's case, 1944 Pat WN 321, which is in consonance with the language of the Statute and, in my opinion, no case has been made out by learned Counsel for the opposite party, for holding that the view expressed by t he Division Bench of this Court in Sitaram's case, 1944 Pat WN 321 requires re-consideration. The opinion expressed by Agarwala, J. in the Full Bench decisiop of the Allahabad High Court, AIR 1951 All 238 does not appear, to me, to be the opinion of all the three learned Judges, who were parties to that decision. It may not fee out of place here to quote the following observations of Agarwala, J., namely, "The language of Section 147 therefore had to be In general words, conveying the idea of prohibition or interference with the right of user. Of course, it would have been better if the Legislature in so many words had conferred upon the Magistrate the pwer of removal of obstruction. If the Legislature had done so, there would have been no necessity of interpreting the section. The need arises as the language is not specifically clear."
After this unequivocal expression of opinion by Agarwala, J. the Code of Criminal Procedure was amended in 1955, including Section 147 itself, but Sub-section (2) of that section has remained AS it was before the fatest amendment. To my mind, the conclusion is irresistible that, the view of the Full Bench of the Calcutta High Court remains good even now. The recent decision of the Madras High Court in Angappa Gounder's case, AIR 1959 Mad 28 has also not fully concurred in the view taken by Agarwala, J. in the Full Bench decision of the Allahabad High Court.
In my opinion, it is not possible to hold from the decisions of the Assam and Mysore High Courts, mentioned above, that a Magistrate Purporting to act under Section 147 of the Code of Criminal Procedure can pass a mandatory order in every case and under all circumstances, by direct-ing one of the parties to remove the obstacle complained of, from his own land, which is alleged to be causing interfeience with the exercise of a right claimed in the Proceeding.
I have dealt with the decisions of the Madras, Assam and Mysore High Courts in detail and, in my opinion, these decisions do not assist learned Counsel for the opposite party, in his submission, that the decision of this Court reported in 1944 Pat WN 321 should no longer be held to be correct. The decision of the Lahore High Court in the case of AIR. 1941 Lah 210 also does not support the extreme contention put forward by learned Counsel for the opposite party.
Whatever might have been the consequence of the order passed by this Court in Criminal Ref. No. 54 of 1951, D/ 3-12-1951 (Pat) that decision cannot be invoked in aid of the proposition that an order of a Magistrate passed in a proceeding under Section 147 of the Code of Criminal Procedure, may in all cases and under all circumstances be made in such a form that the party against whom a prohibitory order is made, will be compelled to remove a construction made by him, at his own cost, on his own land.
18. For the reasons given above, I am of the opinion that the learned Magistrate in this case, had no power to direct the second party to the proceeding to remove the bund constructed by them on their own land. The order of the learned Magistrate in the instant case must, therefore, be varied in this way : The following sentence in the order of the learned Magistrate dated the 10th September, 1957, namely :
"In order to make this prohibitory order effective, I hereby direct the 2nd party to remove the obstruction by 10-10-57 failing which they will be liable to prosecution Under Section 188 I. P. C."
is deleted. The only order of the learned Magistrate which will remain and be operative, will be the first part of the last paragraph of his judgment and order, namely :
"Any interference with the exercise of right is therefore prohibited Under Section 147(2) of Cri. P. C."
The order passed by the learned Magistrate on the 10th September, 1957, is accordingly modified and this application is allowed to that extent.
G.N. Prasad, J.
19. I agree.