Jadubans Deo vs Pandey Bansidhar

Courtney-Terrell, C.J.—This petition which has been admirably argued by Mr. Sahai is for the revision of an order of the Judicial Commissioner of Chota Nagpur, dismissing an appeal from the Sub-divisional Officer of Daltonganj.

The question for decision is as to whether certain proceedings u/s 147, Criminal P.C., are or are not barred as being out of time by reason of the proviso to Sub-section (2). The facts are as follows:

The opposite party has a plot numbered 43; plots 282 and 284, belong to the petitioner. On 16th June 1932, the opposite party petitioned the Sub-divisional Officer complaining that his right to discharge water at the time of the rains from his plot 43 on to the land belonging to the petitioner had been obstructed by the petitioner who had raised the level of a certain bank on his own field. In consequence of this obstruction the water flowing from the petitioner''s field farther northwards rose and thus prevented the water, which should have come from plot 43, from flowing on to the petitioner''s land.

The Magistrate referred the matter to the police for inquiry, and on 19th August 1932, he issued notice to the petitioner to shew cause why the bank should not be reduced to its former dimensions. On the 13th September of the same year he went into the matter and heard the parties. On the 3rd October he delivered his decision and was inclined to find that there had been obstruction to the flow of water committed by the petitioner, but as the rains had by that time completely come to an end and there seemed to him to have been no apprehension of a breach of the peace, he decided that no immediate action was necessary. He said that during the cold weather he hoped to have an opportunity of going to inspect the plots in question and there the matter remained. Nothing was done by the Sub-divisional Officer and on 12th July 1933, the rains having by that time come on again, the opposite party again moved the Magistrate and made a similar complaint.

On 17th October 1933, the Magistrate started proceedings purporting to be u/s 145, Criminal P.C., but later on, on 17th November 1933, he came to the conclusion that there appeared to be no dispute as to possession of the land and therefore as it is said: "converted the proceedings u/s 145, into proceedings u/s 147" which merely means that he announced that the state of affairs would be governed by Section 147 and that he was only free to apply such remedies as that section permitted. Then on 18th December 1933, he made an order against which an appeal was filed to the Judicial Commissioner, directing the petitioner to remove the obstruction on his own land to the flow of water. The point that was taken before the Judicial Commissioner is some what the same point that has been taken before me. It was argued that the Sub-divisional Officer had not come to a definite finding as to whether the first party, that is to say the opposite party in the case before me, had been enjoying the rights of easement within one year from the institution of this case.

The learned Judcial Commissioner came to a conclusion that, although the Sub-divisional Officer''s order did not contain a specific finding on that point, it must be concluded from a perusal of the order that the opposite party was held to have continued in enjoyment of his right to discharge water from his plots up to the year 1932 and backwards from then. Now, this right to discharge water is clearly of the kind contemplated in that part of the proviso to Sub-section (2) of Section 147, which says: "where the right is exercisable only at particular seasons or on particular occasions." The right to discharge water from a field is only exercisable at such times and on such occasions as the flooding of the field with water may happen. That only occurs during particular seasons of the year. The proviso goes on to say that an order cannot be made under this section:

unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.

It will be remembered that the opposite party presented his petition complaining of the facts on 16th June 1932, that is just prior to and just within the commencement of the rainy season and before the full flood of the rains could have taken its effect. The parties were heard on 13th September 1932. It is true that after the Magistrate had inquired into the matter there was a long pause during which the inquiry was really suspended and it is further true that a specific mention in the Magistrate''s order of Section 147 was not made until November 1933. Nevertheless the inquiry into the facts complained of by the opposite party was begun in September 1932, that is to say in the interval between the rains of 1932 and the rains of 1933.

Now, it is clear that the obstruction complained of had been made by the petitioner just prior to the rains of 1932 and therefore the opposite party was not able to enjoy his rights of easement during the occasion of 1932. The meaning of the words "on the last of such occasions before such institution" at the end of the proviso mean, in my opinion, "the last of such occasions before the institution" on which, he might have asserted his rights and that is clearly the rains of 1931.

The petitioner relied upon two authorities, one in Ram Chandra v. Aditya Chandra 1926 Cal 1051, which was a case of obstruction not at a particular season or occasion of a right of easement, but of a continual right of easement, that is to say the enjoyment of a right to cross the servient tenement by means of a pathway. In that case the pathway had been blocked up by the party complained of on the 14th February 1925, and the inquiry was instituted on 20th August 1925. Therefore the earlier part of the proviso applied and inasmuch as the right could not have been by the nature of things exercised within three months before the institution of the inquiry, the inquiry itself was out of time. A similar case is the case of Sohan Lohar v. Jiut Upadhya 1930 Pat 291. In both of those cases the discussion largely turned upon the question of the date of the inquiry, and it was held that the date of the inquiry must be taken to be the date when the Magistrate, having called the parties before him provided by the first subsection of Section 147, inquires into the matter as provided by Section 145.

Now, in this case, the date of the inquiry is clearly September 1932, but whether or not that be the case, whether it be September 1932, or whether when the Magistrate happened to mention in his order Section 147, that is in November 1933, matters little. The real question to be decided is, what is the meaning of the words "last of such occasions before such inquiry." It cannot be supposed that the Legislature meant that "the last of such occasions" could mean anything less than the last of such occasion on which, the right would have been exercisable. Here the opposite party was prevented from enjoying his right of easement in the rains of 1932 by reason of the obstruction caused by the petitioner. He immediately took steps to have the obstruction removed but the Magistrate was unable to deal with the matter or enter into an inquiry until those particular rains had finished. It would surely be unreasonable to hold that because the Magistrate had been unable notwithstanding the promptness of the opposite party in coming to Court, to enter into an inquiry until the rains bad finished, the petitioner should come and say that whereas he had successfully prevented the enjoying of the opposite party''s right on the particular occasion immediately before the inquiry the application of the opposite party for relief should be barred.

In my opinion, the decision of the Magistrate was rightly affirmed by the Judicial Commissioner and this petition in revision must be dismissed with costs. Hearing fee two gold mohurs.