HARI LAL AGRAWAL, J.

1. This application in revision by the members of the second party is directed against the final order passed against them by the Executive Magistrate, Bhabua, in a proceeding under S. 147 of the Cr. P. C, 1898 (hereinafter called the Code).

2. The disputes relate with respect to two Galis; one between Holdings Nos. 214 and 212, on the one side, and Holdings Nos. 217 and 217/1, on the other, and another between Holdings Nos. 217 and 217/1, on the one side, and Holding No. 218, on the other, as also mentioned in the proceeding in question. The proceeding was started on the basis of a police report dated 23-2-1970 on a petition filed by the first party on 14-2-1970 before the Sub Divisional Magistrate, Bhabua.

3. The case of the first party was that the two Galis were connected on the southern side with Bhabua-Chand metalled road and on the northern side with a Gali further north running east to west, and that the first party and other persons whose houses stood continguous to these Galis were using the same as passage for egress from and ingress to their houses for a long time. The members of the second party, who are recent purchasers of Holdings Nos. 217, 217/1 and 218, wanted to create obstruction to the aforesaid user and to raise constructions covering the Gallis in question by showing the Gallis as part and parcel of their purchase.

The case of the second party, namely, the petitioners, was that they purchased the holdings mentioned above by two registered sale deeds dated 1-8-1969 and 19-12-1969 and that the alleged Gallis in question were imaginary somuch so that the first party never used the Galis in question and had a different passage for negotiating the road in question.

4. On the report of the Police, initially a proceeding under S. 144 of the Code was started on 5-3-1970 ,by the Sub Divisional Magistrate, but later on, by an order dated 4-5-1970, on a perusal of the show cause petitions filed by both the parties and examining the facts and circumstances of the case, the learned Magistrate converted the proceeding into one under S. 147 of the Code and directed the parties to file their written statements.

5. In support of their respective cases, both parties examined a large number of witnesses and produced various documents. On an appreciation of the materials produced before him, the learned Magistrate decided the proceeding partly in favour of the first party, that is, he accepted the case of the first party with respect to only one Gali that was by the side of Holdings Nos. 212 and 214 and meets the Bhabua Chand Road (P. W. D.) and rejected the case with respect to the second Gali. The second party has, accordingly, come to this court in revision.

6. Mr. R. S. Chatterji, who appeared in support of this application, raised the following contentions:

(i) The inquiry in question itself having been started beyond period of three months from the date of the complaint of the first party, the whole proceeding was without jurisdiction;

(ii) The Executive Magistrate has not recorded any finding that the right claimed by the first party had been exercised by him within three months next before the institution of the inquiry and, therefore, the order was without jurisdiction; and,

(iii) The Executive Magistrate has misread the agreement for sale and other documents filed by the petitioners,

7. I will take up the first two contentions together as they are inter-connected. These contentions are based upon the proviso to sub-sec. (2) of S. 147 of the Code which prescribes a period of limitation for the aggrieved party to move the Criminal Courts for the redress of his grievance with respect to disputes concerning rights of user of land or water, etc. whether - such right be claimed as an easement or otherwise. The proviso reads as follows:

"Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months n