1. The dispute between the parties related to a water channel, which has been marked 'CD' by the learned Magistrate. The learned Magistrate has found that both the parties had been making use of the water flowing along 'CD.' He was, however, unable to determine from the evidence on the record what arrangement, if any, existed between the parties with regard to it. The parties had been fighting about another portion of the water channel and that was amicably settled with the assistance of the learned Magistrate. But soon after the settlement of that dispute this fresh dispute arose about this bit of the water channel. As the learned Magistrate was not able to put any party in exclusive possession and he found that it would be extremely dangerous to leave the matter to the parties who were bent upon creating trouble, he decided to confirm the order of attachment passed by him on 17-5-1946, and restrained both the parties from making use of the water along the water course 'CD' SO long as the rights of the parties were not determined by a competent Court. The learned Additional District Magistrate has made this reference on the ground that the order passed by the learned Magistrate could not be passed under Section 147, Criminal P.C. and it should, therefore, be set aside.
2. I have beard Mr. N.D. Pant for the applicants, Chandra Ballabh and Hira Ballabh, but Mr. Kailash Prasad Gupta, who represents the complainants, Lal Singh and others, has not appeared. Mr. David on behalf of the Deputy Government Advocate has, however, opposed this reference. It has been urged by Mr. David that Section 146, Criminal P.C., is applicable not only to a case under Section 145 but also to a case under Section 147 and that if the Magistrate is not satisfied about the exclusive possession of any party he can attach the right of user of an immovable property. Mr. Pant has, however, urged that in a case under Section 147, Criminal P.C., if Magistrate is not satisfied that either party was in exclusive possession the complaint must be dismissed. Mr. Pant has further urged that it is a wrong use of the word to say that a person can be in possession of a right of user, and Section 146 relates to eases where the Magistrate was not able to determine which party was in possession of the subject-matter of dispute. I am inclined to accept his view that the way Section 146 is worded it is probably not applicable to a dispute relating to a right of user of immovable property, but I do not see why the learned Magistrate could not pass a suitable order under Sub-section (3) of Section 147. Under Sub-section (3) if it appears to such Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right. It is true that in this case the Magistrate found that both parties had been taking water from the gul, but both parties were claiming before the Magistrate exclusive right and the Magistrate was not satisfied that such exclusive right did exist and he was, therefore, competent to pass an order prohibiting any exercise of the alleged right. The Magistrate has no doubt said that he was confirming the attachment order made by him on 17th May, but he has gone, on to say that he was restraining both parties from making use of the water from the water-course at the place marked 'CD.' To my mind, the order prohibiting any exercise of the alleged right could be passed by the Magistrate under Section 147, Sub-section (3), and that is the interpretation that can reasonably be put on the order passed by the Magistrate, dated 14-9-1946.
3. I, therefore, reject this reference. The order passed by the Magistrate restraining either party from making use of the water along the water-course 'CD' shall be maintained till the dispute is settled by a Court of competent jurisdiction.