1. This is a reference made by the Additional Sessions Judge of Rangpur. It arises out of a proceeding under Section 133, Criminal P.C. It appears that one Sonaulla Basunia purchased some brickfield land which was low-lying and into which surplus rain water from neighbouring lands used to flow during the rains. It appears also that Sonaulla has now raised the level of that low-lying land of his with the result, that it has prevented the flow of surplus rain water from the adjoining lands causing an overflow into other lands. The learned Judge has recommended that the proceeding should be cancelled on the ground that the learned Magistrate had no jurisdiction to deal under Section 133, Criminal P.C., with the present case.
2. The reference, which is not opposed before us, should in my opinion, be accepted. The facts of the present case seem to he on all fours with the facts of the case in Jagarnath Sahu v. Parmeswar Narain AIR 1914 All 213, where it was held that in a case like the present one, Section 133 would not be applicable and that if it is found that any injury has been caused by any tortuous act of the man against whom proceedings under Section 133 are sought, then the persons who have been damnified may have their remedy by civil suits. For the reasons given above I would accept the reference and cancel the proceedings under Section 133, Criminal P.C.
3. I agree.