1. After the receipt of a report from the Station Officer, Khapa, that members of. party No. 1 had closed a path leading to a well with tatta fencing and thereby inhibited party No. 2 and their womenfolk from fetohing water from it, the Sub-Divisional Magistrate Saoner, passed a preliminary order on 13th June 1947 under Section 145, Criminal P. C. After evidence had been recorded, he found that the area in question was an open area which the villagers, espe. cially party No. 2, were entitled to use and he ordered that this area be kept open and that party No. 2 be put in possession of it until evicted therefrom in due course of law.
2. The Second Additional Sessions Judge, Nagpur, has now reported the case under Section 438, Criminal P. C, with a recommendation that the order which purported to be under Section 145 be so altered as to bring it into conformity with Section 147 (a), Criminal P. C.
3. Section 147 relates to a dispute regarding a right of user over land or water whether such right be claimed as an easement or otherwise; and if the Magistrate considers that such right exists, he may make an order prohibiting any in-dereference with the exercise of such right. This is subject to the proviso that no such order shall be made where the right is exercisable at all time3 of the year, unless such right has been exercised within three months next before the institution of the inquiry, or, where the right is exerciaable only at particular seasons or on particular oooa-sions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution. The Magistrate may also make an order prohibiting the exercise of the alleged right if it appears to him that it doss not exist.
4. This section was, as the learned Second Additional Sessions Judge pointed out, the appropriate one in the present case and, as also pointed out by him, the mode of enquiry is the same for this section as for 8. 145. Notice was, it is true, issued under Section 145, Criminal P. C, and the preliminary order was passed under that section, but this did not invalidate the proceedings. The view taken in Turabali Khan v. Shromani Qurdwara Parbandhak Committee A. I. R. 1933 Lah. 145 : 84 Cri. L J. 616 to the effect that no order can be passed under Section 147. Criminal P, C, when notice was not issued under that section but under Section 145 differed from the views taken in Anath v. Wahidali : AIR1925Cal1022 , Gh, Gajraj Singh v. Emperor : AIR1936All320 , In re Amarsang Shivsanji : AIR1939Pat206 with which I am in respectful agreement.
5. The finding of the Courts below to the effect that the villagers, and particularly party No. 2, had a right of way over the land was sound. There was also evidence to show that the right had been exorcised within three months Hext before the institution of the enquiry. This enquiry was the enquiry by the Magistrate into the rights of the parties and the order-sbeet shows that the institution began on 13th June 1947. In fact, Jumma who wag examined as P. w. 9 for party No. 1 admitted that the tatta fencing had been erected in Jesth (May-June) 1947. Moreover, Abdulla, who is one of the members of party No. 1, admitted in evidence that he had, on 14th April 1947, erected a mandua on the land and there was a reference thereto in his applications of that date and of 23rd April 1947 to the police.
6. The order of the Sub-Divisional Magistrate was, as the Second Additional Sessions Judge pointed out, one in the nature of a mandatory injunction, although Gruer J. had in Syed Usma?i AH v. Grown I. L. R. (1938) Nag. 580 : A.I.R. 1938 Nag 297 : 39 Cri. L.J. 584 held that under s. H7, Criminal P. C, a Magistrate has no power to make an order in the nature of a mandatory injunction. The same view was taken vin Hem Chandra Banerji v. Abdur Bahman I. L. R. (1942) 2 cal. 75 : A.I.R. 1942 oal. 244 by a Full Bench. All that the Magistrate in the present case could do was to make an order prohibiting any interference with the right of way which in his opinion existed.
7. In the circumstances, the order of the Magistrate is set aside and replaced by an order prohibiting any interference with the exercise of the right of user of the land in question by the villager, including party No. 2.