A Magistrate purporting to act under Section 147 of the Code of Criminal Procedure, 1973, has no power to pass a mandatory order directing one of the parties to remove an obstruction already caused.

U.N.Sinha, J.

1. This is an application by the second party in a proceeding under Sec.147 of the Code of Criminal Procedure. It is directed against the order of the learned Magistrate dated the 10th of September, 1957, by which he has prohibited the second party from interfering with the exercise of a right of easement claimed by the first party to the proceeding.

In order to make his order effective, the learned Magistrate has directed the second party to remove an obstruction said to have been erected by them, by the 10th of October, 1957, failing which it is stated that the second party will be liable to prosecution under Sec.188 of the Indian Penal Code. Being aggrieved by the order of the learned Magistrate, the petitioners had moved the learned Sessions Judge, asking him to make a reference to this court, in order that the order of the learned Magistrate may be set aside. The learned Sessions Judge has refused to make such a reference.

2. The facts, shortly speaking, are as follows: The case of the first party was that he had his residential house in village Mahadeva and the drain water of his house used to flow towards north and used to be discharged, from time immemorial, into Plot No 203 belonging to the second Party. On the 28th of October, 1956, the second party erected a bund on their land resulting in complete stoppage of the flow of the drain water from the house of the first party.

The first party had Protested and had opposed the construction of the bund in question, but the second party had been adamant in their attitude, with the result that there was an apprehension of a breach of peace. The first party Prayed that action may be taken by the learned Magistrate under Sec.147 of the Code of Criminal Procedure. The case of the second party was that plot No. 203 was their kasht land upon which they grow different kinds of crops and vegetables.

For the protection of their crop a bund exists on the said plot for a long time. The second party used to repair the bund from time to time and the drain water from the house of the first party never flowed into plot No. 203. According to the second party, the drain water from the house of the first party used to flow towards west. The case of the second party further was that, over the flow of the drain water from the house of the first party there had been some dispute between the latter and one Satnarain Nonia which dispute had been settled on compromise between them.

3. Upon the allegations stated above, a proceeding under Sec.147 of the Code of Criminal Procedure was drawn up and both the parties adduced evidence before the learned Magistrate in support of their respective cases. Upon a consideration of the evidence adduced before him, the learned Magistrate has held that the first party had successfully proved his right of easement since time immemorial and that an interference with the right was likely to lead to breach of Peace. The learned Magistrate has, therefore, passed the order complained of.

4. In order to appreciate the contention raised in this court, I will quote the exact order passed by the learned Magistrate; namely :

"Any interference with the exercise of right is therefore prohibited Under Sec.147 (2) Cr. P. C. In order to make "this Prohibitory order effective, I hereby direct the 2nd party to remove the obstruction by 10-10-57 failing which they will be liable to prosecution Under Sec.188 I. P. C."

5. Two Points have been urged in this court by learned counsel appearing for the petitioners. The first point urged is that the learned Magistrate has not given any finding that the right claimed by the first party had been exercised within three months next before the institution of the enquiry, the right claimed by the first party being one that was exercisable at all times of the year. Our attention has been drawn to the proviso to Sec 147 Sub-section (2) of -the Code of Criminal Procedure, and it has been contended that in the absence of such