The Executive Magistrate has the jurisdiction to decide the dispute over right of easement under Section 147 of the Code for the limited purpose of preventing breach of peace.

Chakradhari Sharan Singh, J.(Oral)

Heard learned Counsel for the parties concerned.

2. By the order, which is impugned in the present criminal revision application, learned Additional Sessions Judge I, Munger, has held that in exercise of power under Section 147 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the Sub Divisional Magistrate/Executive Magistrate, Tarapur, Munger, did not have power to decide dispute over right of easement, which can only be decided by a civil court. This is precisely the question involved in the present application raised by the petitioner, in whose favour, the Sub Divisional Magistrate, Tarapur, Munger, had earlier passed an order upholding his right of easement over the disputed land.

3. The facts of the case, briefly said, are thus:

(i) The petitioner had filed an application under Section 107 of the Code in the Court of learned Sub Divisional Magistrate, Tarapur, Munger, for restraining Opposite Party No. 2 from taking any unlawful step in respect of obstruction created by him in connection with the disputed land described as khata no. 125, khesra no. 397, area 4 decimals, which, accordingly to the petitioner, was being used as the only way for his ingress and aggress from his house to the main road for a fairly long time and was used as such even by his ancestors.

(ii) On 02.12.2005, the petitioner filed an application before the learned Executive Magistrate, Tarapur, Munger, for converting the said case under Section 107 of the Code to a proceeding under Section 147 of the Code. The Sub Divisional Magistrate, Tarapur, Munger, by an order, dated 16.06.2009, allowed the petition filed by the petitioner under Section 147 of the Code and thereby prohibited the Opposite Party No. 2 from creating any obstruction against the petitioner's right of his user and asked him to abstain from raising any structure on the said land. From the said order, dated 16.06.2009, which has been brought on record by way of Annexure-2 to the present application, it appears that both the parties were heard, who had adduced evidence before the Court of Sub Divisional Magistrate, Tarapur, Munger, both oral and documentary. The Opposite Party No. 2 took specific stand that he held title and possession over the disputed land and the petitioner did not have any right of easement over the said land.

(iii) It also transpires from the said order that the Sub Divisional Magistrate, Tarapur, Munger, had sought for a report from the Police. In their enquiry report, the Police had mentioned existence of a path over the land in question, which was being attempted to be stopped by raising a wall. The Police had reported apprehension of breach of peace because of the obstruction being raised by the Opposite Party No. 2. In a subsequent report, the Police reported that the said land was being used as path by the petitioner. In its third report also, while requesting initiation of a proceeding under Section 147 of the Code, the Police reported that the disputed land was being used as path.

(iv) On the basis of oral and documentary evidence adduced in the proceeding under Section 147 of the Code, the Sub Divisional Magistrate, Tarapur, Munger, concluded that the disputed land was being used as path by the petitioner and the same had been in use for the said purpose by the petitioner, two months next before initiation of proceedings. After having held thus, the Sub Divisional Magistrate, Tarapur, Munger, passed the said order, dated 16.06.2009, restraining the Opposite Party No. 2 from causing any obstruction over the disputed land and from making any construction over it.

(v) The Opposite Party No. 2 preferred criminal revision application against the said order, dated 16.06.2009, on the plea that the Court of Sub Divisional Magistrate, Tarapur, Munger, wrongly relied on the Records of Right, which was prepared nearly 100 years ago. He took a plea that character of the land had changed and in that bac