This is a revision against an order of the Magistrate passed in proceedings under sec­tion 147 of the Criminal Procedure Code. The opposite party, Sri Kaliram Burman, hereinafter referred to as the first party, made a petition under S. 147, Cr. P. C. Police report was called for and proceedings were drawn up on 31-7-1958. The first party contended that there was a serious appre­hension of a breach of the peace with regard to the construction of a brick wall within 11/2 feet of the first party's dwelling house. The wall is 6 feet or 7 feet high and is obstructing the air and light from the window of the bed rooms of the first party which he continuously enjoyed for the last 28 years.

During the rains, water falling on the new wall enters the room of the first party through the window inside the bed room which caused great annoyance and discomfort to the first party. The wall is further said to have been constructed on the land of the first party and has caused considerable damage to the house of the first party blocking the passage by narrowing it down to 11/2 feet which was used by the first party for the purpose of repairing the walls of his house. Notice was served on Musst. Brmbaneswari Goswami, hereinafter referred to as the second party, to show cause why the brick wall which was being constructed should not be demolish­ed. 18-8-1958 was' fixed for filing written state­ments by both the parties. The first party filed his written statement on 16-8-1958 and the second party on the 30-8-1958.

The second party denied that she had constructed any wall on the land of the first party. The brick wall, according to the second party, had been constructed at a place where an old fencing stood several months before. The first party has built his house just near the boundary and consequently, on constructing the new wall in place of the old fencing, inconvenience may have been caused to him. It was further urged in the written state­ment filed on behalf of the second party that the first party never enjoyed any right of user over the land in dispute as an easement and, as such, the claim was misconceived. Both the parties pro­duced evidence in support of their respective claims. The Magistrate framed the following questions for determination:

"(a) Whether the 2nd party has obstructed the right of user of the laud claimed by an easement or otherwise by the 1st party, by construction of the wall as alleged by the 1st party.

(b) If constructed, whether it was constructed in June as alleged by 2nd party or on 20th March as alleged by the 2nd party."

It was urged before the Magistrate by the second party that S. 147, Cr. P. C., does not contemplate the case of interference with the enjoyment of the right of light and air through windows. The Magis­trate accepted this contention. He, however, held that as the wall constructed on the land of the first party had narrowed down the passage used by the first party for repair of his building for the last 30 years, S. 147, Cr. P. C. was applicable. The Magistrate then found that the first party has established that he has been using the land for the purpose of repairing his house and the passage has been narrowed down by the new construction. He further held that the wall was constructed in June and not in March as alleged by the second party. He was further of opinion that a manda­tory order could be passed for the removal of the construction under S. 147, Cr. P. C. and he ac­cordingly passed an order directing the second party to demolish the wall within seven days of the order, failing which the obstruction was to be removed at the cost of the second party. Against this order the second party went in revision before the Sessions Judge who rejected it.

(2) In the present petition, three main con­tentions have been raised by the counsel for the petitioner. Firstly, it is contended that S. 147, Cr. P. C. does not contemplate the case of inter­ference with the user of a portion of his own land. Section 1

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