Mulla, J.:— This is a reference by the learned Sessions Judge at Agra recommending that an order passed by a Magistrate on 3rd March, 1945, in a proceeding under Section 147 of the Cr PC, be set aside as one beyond his jurisdiction. The facts leading up to the order in question may briefly be stated as follows:

One Seth Chadammi Lal has recently purchased a house in the town of Firozabad. This house is separated by a narrow strip of land from another building to the west of it known as the Mathur Vaish Dharamshala. From a plan of the locality which is on the record it would appear that the strip of land is about twenty-five or twenty-six feet in length and about nine feet in width. It appears to be a blind alley. The two persons, Ram Chand and Kunji Lal, on whose behalf this reference has been made, are members of the managing body of the Dharamshala. It appears from the record that in the year 1938 Seth Chadammi Lal obtained the sanction of the Municipal Board for opening a door and two windows in the western wall of his house towards the blind alley referred to above and also to let the rain water flow from his house through drains on to the narrow strip of land. On 26th January, 1942, one Khushi Ram in his capacity as the general agent of Seth Chadammi Lal made an application to the Sub-Divisional Magistrate at Firozabad purporting to be under sections 147 and 133 of the Cr PC. It was alleged in this application that the strip of land separating the house of Seth Chadammi Lal from the Dharamshala belonged to the Nazul Department and Seth Chadammi Lal had a right of passage on that land and also the right of letting the rain water flow from his house through drains on to that piece of land. It was further alleged that Ram Chand and Kunji Lal, against whom the application was directed, had started laying the foundation for a wall on that piece of land which would have the effect of totally obstructing the exercise of his rights by Seth Chadammi Lal. Lastly, it was alleged that there was an apprehension of a breach of the peace. Upon this application the Sub-Divisional Magistrate passed the following order:

“Presented before me at Firozabad on a holiday. As the matter is alleged to be urgent and apprehension of trouble is also shown, which during Muharram celebrations must be looked into at once, the application is sent to the Station Officer, Firozabad, for necessary and prompt action and report. If the allegations turn out to be well founded and the land appears to be Nazal or Municipal land the disputed construction should be prohibited at once, pending further orders by this Court.”

2. This order appears to have been served upon Ram Chand and Kunji Lal who accordingly stopped the construction in question. On 29th Jranuary 1942, however, Khushi Ram made another application to the Sub-Divisional Magistrate to the effect that Ram Chand and Kunji Lal had again started the construction in question in defiance of the Magistrate's order and opon that application the Magistrate made the following order:

“On the basis of the affidavit filed with this application I consider the matter requiring prompt action. No report of the S.O Firozabad has yet been received on the complaint filed under Section 145 of the Cr PC, on 26th January, 1942. I ordered on that application that the disputed construction should be prohibited if there is likelihood of the breach of the peace. I believe that order of mine was communicated to the opposite party. The present condition alleged in the affidavit shows the high-handedness which cannot be allowed. The S.O Firozabad to attach the disputed land and construction and to report promptly.”

3. We have examined the record but we have not been able to find anything to show that this order of attachment was in fact carried out. It appears that Ram Chand and Kunji Lal continued to make the construction until it was complete. The construction consisted of a wall raised by them just opposite to the western wall of Seth Chadammi Lal's house preventing any access to the strip of land referred to above from Chadammi Lal's house. There was some delay in a report being made by the Station Officer of Firozabad as required by the Sub-Divisional Magistrate. An examination of the Urdu order-sheet would show that the primary cause of the May was the fact that the Station Officer of Firozabad was not supplied with a copy of the application made by Khushi Ram. It appears, however, that on 27-4-1942, the Station Officer made a report which is Ex. D-1 on the record. In this report the Station Officer said that the strip of land belonged to the Nazul Department and Ram Chand and Kunji Lal had no right to construct the wall in question but it mentioned at the same time the fact that the wall had already been completed before any order of attachment could be sewed upon Ram Chand and Kunji Lal and there was no question of any danger of a breach of the peace. It appears that sometime after this report the Sub-Divisional Magistrate, who was in charge of the proceeding at that time, made an inspection of the locality and on 22-5-1942, he passed the following order:

“The opposite party are called upon to show cause why the wall they have built shutting out the doors and windows of the house of Lala Chadammi Lal should not be demolished. I have inspected the locality.”

4. This order was presumably passed on the ground that the proceeding instituted upon the application of Khushi Ram was one under Section 133 of the Cr PC. This aspect of the case has, however, not been pressed and we shall have nothing more to say about it. The proceeding has been treated all along as one under Section 147 of the Cr PC. For various reasons the proceeding remained pending for about three years and it was only on 3-3-1945, that the Sub-Divisional Magistrate passed a final order in the following terms:

“I do order that the said Ram Chand and Kunji Lal or any one in their interest shall not take or retain possession of the said land by the erection of the wall to the exclusive enjoyment of the right of use aforesaid until he or they shall obtain a decree or order of a competent Court adjudging them to be entitled to exclusive possession and I order that the obstruction caused by the wall shall be removed by the opposite party within one month of this order failing which the removal shall be done under an order of the Court.”

5. It is against this order and particularly the last portion of it that the reference made by the learned Sessions Judge is directed. The learned Sessions Judge has pointed out that the order passed by the Magistrate, particularly the last portion of it, was in the nature of a mandatory injunction and relying upon a decision of the Calcutta High Court in the Full Bench case in I.L.R (1942) 2 Cal. 751 he has held that such an order was beyond the jurisdiction of the Magistrate under Section 147, sub-section (2) of the Cr PC. He has accordingly recommended that the whole order passed by the Magistrate should be set aside, inasmuch as the first portion of the order would be futile in the circumstances of the case and the latter portion was beyond the jurisdiction of the Magistrate.

6. The main question which arises for consideration in this case is whether Section 147, sub-section (2) of the Cr PC, empowers a Magistrate to issue a mandatory injunction or to pass an order directing the demolition of a building or construction which has already been made. As already stated, a Full Bench of the Calcutta High Court has definitely held that no such order can be passed by a Magistrate under Section 147, sub-section (2) of the Cr PC, which runs as follows:

“If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.”

7. A contrary view has, however, been taken by the Madras High Court in A.I.R 1930 Mad. 8653 and A.I.R 1941 Mad. 752. The judgment in the latter case is very brief and does not give any reasons for the view taken therein; nor does it contain any reference to any previous case of the Madras High Court itself. There could be no reference to the Full Bench case of the Calcutta High Court because that came later. In the former case the dispute was as to the right of a person to the flow of water down a channel which had been blocked by the opposite party. The order passed by the Magistrate in that case prohibited the respondents from putting up any bunds across the channel in their field and also from interfering with the petitioner's removing the obstructions already put up. It is significant to note that the learned Single Judge, who decided the case and who held that under Section 147, sub-section (2) of the Cr PC, a Magistrate has not merely the power of prohibiting an act, but also the power of directing one of the parties to do a positive act by way of a mandatory injunction, did not approve of the latter part of the Magistrate's order which in effect allowed a party to remove certain constructions which had already been made and which interfered with his right. Though be did not actually hold that such an order was beyond the jurisdiction of the Magistrate, yet he refused to confirm it. There is also a Single Judge decision of the Lahore High Court in A.I.R 1941 Lah. 2104 in which it was held following the Madras view and the decision of the Calcutta High Court in A.I.R 1940 Cal. 5455 that S. 147(2) empowers a Magistrate in a proper case to order a person to do something or in other words to direct a mandatory injunction. In that case the Magistrate bad passed the following order:

“I, therefore, order that the walls 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, Malut.”

8. It is again significant that in spite of the view taken by the learned single Judge he refused to confirm the latter portion of the Magistrate's order and made the following observations:

“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 ex-haustively considered all the issues between the parties.”

9. The view taken in the Full Bench case of the Calcutta High Court has also been accepted by the Nagpur High Court in A.I.R 1938 Nag. 2976. Upon a careful consideration of the scope of Section 147, sub-section (2) of the Cr PC, we are inclined with due respect to agree with the view taken by the learned Judges of the Calcutta High Court in the Full Bench case. The language of sub-s. (2), in our judgment, clearly indicates that if at the date when the Magistrate passes his order it is still possible to exercise the right alleged by the applicant, though it may have been either threatened or partially obstructed, the Magistrate can make an order prohibiting any interference with the exercise of such right, but where it is found that the alleged right cannot possibly be exercised in consequence of some permanent obstruction created by the opposite party it would obviously be futile for a Magistrate to prohibit “any interference with the exercise of such right.” The principal, and indeed the sole object, of a proceeding under chap. XII, Criminal P.C, which includes S. 147, is to prevent a breach of the peace. When the exercise of the alleged right has been totally prevented, no question of a breach of the peace in consequence of the exercise of that right can possibly arise and in those circumstances we think it is not within the jurisdiction of a Magistrate under S. 147, sub-s. (2) to pass an order to the effect that the permanent obstruction should be removed. In those circumstances the matter really resolves itself into a civil dispute between the parties and they should be left to pursue their remedy in the civil Court. Once it is found that there can be no danger of a breach of the peace, there is in our judgment no justification for an order under Section 147, sub-section (2) of the Cr PC.

10. In the case before us it is clear that though there might have been some apprehension of a breach of the peace at the date on which Khushi Ram made his first application purporting to be under Sections 147 and 133 of the Cr PC, yet there could be no such danger at the date on which the Magistrate passed the order more than three years later, that is, on 3-3-1945. It was alleged that Ram Chand and Kunji Lal were constructing a wall which would obstruct the right of the applicant and an order was passed by the Magistrate to the effect that the land on which the wall was being constructed should be attached, but that order does not appear to have been carried out and the fact remains that Ram Chand and Kunji Lal continued to make the construction in dispute until it was completed and that there was no breach of the peace during that period. Once the construction was completed and the exercise of the right alleged by the applicant became quite impossible, there could be no question of a breach of the peace. We, therefore, accept the reference made by the learned Sessions Judge and set aside the order passed by the Magistrate on 3-3-1945.

11. Reference accepted.