The question in dispute before the Magistrate was whether a right existed in the counter-petitioners to take rain water from the field of the petitioner through the bund separating the petitioner's field from the counter-petitioners' field.
The learned Magistrate purported to make an enquiry under S. 145, Criminal Procedure Code, and passed an order under S. 146(1) ordering attachment by the Court because he was unable to decide whether such right existed or not. He clearly should have acted under S. 147, which deals with disputes with regard to easements; that section does not make any provision for action to be taken in case the Magistrate is unable to decide between the parties. If it appears to the Magistrate that such a right exists, he may issue an order prohibiting interference with the exercise of the right; on the other hand, if it appears to the Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right. As he was not satisfied that either S. 147(2) or S. 147(3) applied, he was unable to pass an order either prohibiting interference or prohibiting the exercise of the alleged right; nor could he pass an order attaching the land; for such an order can only be passed where there is a dispute with regard to immoveable property that can be dealt with under Ss. 145 and 146, Criminal Procedure Code. The order of the Magistrate is therefore clearly wrong and must be set aside.
It has been suggested by the learned Counsel for the 5th counter petitioner that the Magistrate should be directed to give a definite finding one way or the other; but a definite finding where the evidence is conflicting may not be possible. The petition is therefore allowed and the order of the lower Court set aside.
Petition allowed.
N.R.R