This is an application for revision from an order passed by a Magistrate in the Basti District under Section 137 of the Code of Criminal Procedure directing that a certain bandh (a well to parent the flow of water) be removed. The Court adopted the correct procedure by issuing a notice against the applicants to remove the bandh within a certain time specified in the order, or to appear and show cause against the same. When the applicants appeared, they denied the existence of any public right in the opposite party under Section 139A. The Magistrate thereupon recorded evidence. There was considerable reliable evidence in support of the denial of the right being a public right. The Magistrate, however, found that there was no such evidence and proceeded as laid down in Section 137 of the Code of Criminal Procedure. The applicants, Munna Tewari and others, have, therefore, come in revision to this Court, because the Magistrate finally made the orders under Section 133 absolute under Section 137 of the Code of Criminal Procedure. For the sake of convenience the persons who desired the removal of the bandh may be called Chandrabali's party, and the persons who built the bandh may be called Munna's party. There is a very large jhil (expanse of water) on Chandrabali's side in village Tal Bharanch alias Bakhra jhil. This village is on a higher level than the village of Ghurapali which belongs to Munna and others. The water flows down from the jhil by a channel to the river Rapti from village Tal Bharanch and village Ghurapali which adjoins Tal Bharanch. Subsequently the water passes through several villages before it reaches the river Eapti. During the rains there is an expanse of water right up from the jhil to the Eapti, but in the dry season the water has to be prevented from flowing away, and Chandrabali's party have by litigation acquired a right to build a bandh to preserve the water of the jhil during the dry season. Munna's party of the Ghurapali village did the same during the spring and collected water for their use in their village. In the winter and spring this year there had been rain, so this stoppage of water threw the water back on the village of Chandrabali, and it is alleged that it caused damage there Chandrabali's party claimed that Munna had no right to bnild the bandh which he did to stop the water flowing on to the river Rapti, and that Chandrabali and his party have a right to prevent all the villages between their village and the Rapti from building a bandh, and thereby preventing the flow of water from Chandrabali's jhil to the Rapti, when Chandrabali has surplus water. This very statement of the case will show that Chandrabali claimed a private right, and not a public one. Both the subordinate Courts have relied on a Single Judge case of this Court, Bharosa Patak v. Emperor 13 Ind. Cas. 999; 9 A. L. J. 355; 13 Cr. L. J. 183; 34 A. 345, in holding that the right claimed by Chandrabali was a public right, because it affected a very large number of people. In that case, however, the learned Judge observed that the case was on the border line. He made reference to Section 268 of the Indian Penal Code in which a public nuisance is defined as an set, or an illegal omission which causes any common injury, danger or nuisance to the public, or to the people in general who dwell or occupy property in the vicinity. The injury must be to the people in general, and not to particular people such as cultivators. In the present case the injury is not caused to people in general, whether they be cultivators or artisan's, but only to a certain class of people who are agriculturists in the village of Chandrabali. As pointed out by a Bench of two Judges 1 in In re Maharana Shri Jaswatsangji Fate-Sangji 22 B. 988; 11 Ind. Dec. (N. S.) 1242 (by the Bombay High Court) not only the way, river or channel, where an unlawful obstruction is made, must be one of public use, but also the obstruction must be of that public use. In the present case the channel is not a public river, but one passing' through particular villages, and of which the , water is used by the agriculturists on both banks thereof. The obstruction ill any way cannot be considered public, because only the villagers of Chandrabali's , village allege that they were injured there of by, and there is no complaint by the general public. In a case similar to the present a Bench of this Court considered the law on the subject in some detail, and came to the conclusion that a field which is on a lower level than the adjoining fields and over which the surplus water of 'these adjoining fields used to flow into a tank, even if it be described as a channel, is not such a channel as had been or could lawfully be used by the public and action can not be taken under Section 133 of the Oode of Criminal Procedure for the removal of any unlawful obstruction from it [Jagar Nath Sahu v. Parmeshwar Narain 23 Ind. Cas. 181; 12 A. L. J. 248; 15 Cr, L. J. 229 36 A 209]. In a Bench ruling, Abdul Wahid Khan v. Abdullah Khan 74 Ind. Cas. 849; 21 A. L. J. 529; 45 A. 656; 24 Cr. L. J. 817; A.I.R. 1924 All. 1, the majority of Judges out of three were of opinion that the Magistrate has jurisdiction to take action under Section 133 of the Code of Criminal Procedure even where a bona fide claim of right is raised by the defendant, but when the question whether the right rested in the public is seriously disputed, and its decision becomes a difficult matter of mixed fact and law, the proper procedure for a Magistrate to employ would be under Section 139A (2) to stay proceedings until the matter of the existence of such right has been decided by a competent Civil Court, in a case before me in Oudh I drew the attention of Magistrates to the observations, of Mr. Justice Daniels in another case that the existence of a genuine dispute as to title suitable for decision by tha Civil Court is a sufficient ground for not making an order absolute under Section 137 of the Code of Criminal Procedure [Bhagwan Das v. Emperor 73 Ind. Cas. 523; 9 Order and A.L.R. 35; A.I.R. 1923 Oudh 152; 24 Cr. L.T. 635.
It may be noticed that the provisions of Section 139A were enacted in 1923 to give effect to a Bench ruling of the Calcutta High Court [Manipur Dey v. Bidhu Bhusan Sarkar 26 Ind. Cas. 146; 42 C. 158; 18 C.W.N. 1086; 15 Cr. L. J. 698]. That case was a case of the obstruction of a public way, and the decision was that if the Magistrate finds that the claim of the defendant is a bona fide one to the effect that the right is a private and not a public one, the Magistrate should stay his hand and refer the parties to the Civil Court. In the present case there cannot be the slightest doubt that Munna's party is laying a bona fide claim to a private right to raise a bandh for the preservation of water to irrigate their own fields. In fact Mr. Iqbal Ahmad, who appeared for the opposite party, informed the Court that a suit for damages to the extent of Rs. 50,000 was being prepared for the damage caused to Ohandrabali's party by the bandh being put up. Obviously then tha dispute' is a private one between Munna's party and Chandra bali's party, and should be decided by a Civil Court. As pointed out in the Calcutta case and the case of this Court reported as Abdul Wahid Khan v. Abdullah Khan (4) the proper order for the Magistrate to pass was one under Section 139A to stay proceedings until the matter of the existence of such right had been decided by a competent Civil Court. I set aside the order of Mr. Ram Bihari Sahi, Magistrate, dated 19th February, 1928, under Section 137 of the Code of Criminal Procedure and substitute in its place an order under Section 139A that the proceedings be stayed until the matter of the existenco of the right of Munna's party to build the bandh has been decided by a competent Civil Court.