In Re: Sirkawal Singh and Others

Kulwant Sahay, J.—This is a reference made by the Sessions Judge of Shahabad recommwending that the order passed by the Sub-Divisional Magistrate of Sassa-ram u/s 147 Criminal pro Code may be set aside. It appears that proceedings uunder Section 147 were initiated on a police report dated the 3rd November, 1922. Proceedings were drawn up on the 20th November, 1923. The dispute was as regards the right of the first party to take water from a reservoir in plot No. 809, through a water passage No. 811, to two Ahars Nos. 931 and 948 in order to irrigate the lands lying to the south and east of the village Sheopur. The second party has taken settlement of a portion of plot No. 809 which is entered in the record of rights as ghair mazruua from the landlord and he has built a hut thereon.

The case of the first party is that the second party has obstructed the passage of the water from the reservoir 809, so that the water cannot he taken from that reservoir through the passage, plot No. 811, to the two Ahars 931 and 948.

The second party''s case is that the water was never taken from plot No. 809 through the passage 811 as alleged by the first party.

The learned Sub-Divisional Magistrate has found that the water from the reservoir 809 used to be taken to the Ahars 931 and 948 through plot No. 811; but there is no finding in the judgment of the learned Sub-Divisional Magistrate that this right has been exercised by the first party within three months next before the institution of the inquiry; or if this right is exereisable only at particular seasons or on particular occasions, that the right has been exercised on the last of such seasons or on the last of such occasion. u/s 147 no order can be passed unless the Magistrate comes to a finding that the right has been exercised within the period specified in the section. The learned Sessions Judge is of opinion that this defect in the judgment of the learned Sub-Divisional Magistrate is fatal and the order should be set aside upon this ground. I agree with him that in the absence of a finding that the right has been exercised within the periods specified by Section 147, the final order u/s 147 cannot be maintained. This was the view taken by this Court in Mr. Grant v. Padarath Jha 61 lnd. Cas. 817 : 2 P.L.T. 361 : 22 Cr. L.J. 463.

The result is that the order of the learned Sub-Divisional Magistrate is set aside.

It will of course be open to him to initiate fresh proceedings if there is still an appreheusion of a breaeh of the peace.