( 1 ) MOHAMMAD Hamiduallah made an appln. under Section 145, Criminal P. C. complaining that abdul Wahab Khan was trying to close the door of his (Mohammad Hamidullahs) house opening into a lane as also a drain passing through the lane and joining the municipal drain by constructing a wall across the door. Ho alleged that he had been using the lane for passage through the door for the last 20 years and that the action of the opposite party was likely to cause a breach of the peace. The appln. , though ostensibly made under Section 145, was in reality under section 147, Criminal P. C.

( 2 ) THE Mag. issued notice to the opposite party who replied that he was the owner of the lane on which the appct. claimed a right of way. According to him, the appct. had opened the door in question a short time ago during his absence from Allahabad. He denied the existence of the drain and the right of way claimed by Mohammad Hamiduallah.

( 3 ) THE Mag. found that the open land had been used as a lane by the inmates of Mohammad hamiduallahs house for several years past and that the opposite party had recently Started the construction of the wall in front of the disputed door. He also found that there was a dram on the disputed land through which water of Hamiduallahs house flowed. He, therefore, held that the appct. had a right of way over the land through the door and also a right to flow water through the drain on the land into the municipal drain. He passed the following order: i hereby order that the opposite party will remove the wall erected in front of the western door of the appct. within ten days of this order. It is hereby declared under Section 145/147, Criminal P. C. that the appct. has got a right to pass over the disputed land which has been attached from the western sidedoor to the main road He has also got the right to keep his drain flowing from the disputed land up to the Municipal drain. The opposite party is forbidden to interfere with the exercise of these rights by the appct. or pain of prosecution under Section 188, Penal Code " against this order the opposite party made an appln. in revn. to the Ses. J. of Allahabad, who being of the opinion that Section 147, Criminal P. C. did not authorize a Mag. to pass a mandatory order directing the removal of a wall, made this reference, with the recommendation that the mandatory portion of the Mag. s directions (ordering the appct. to demolish a wall be quashed. The matter first came up before the Honble the Chief Justice who, in view of the conflicting authorities upon the question, referred the case to a Bench which again in its turn considered that the case might be heard by a larger Bench. The reference is accordingly before us for disposal.

( 4 ) UNDER Section 147, Criminal P. C. , when there is a dispute likely to cause a breach of the peace regarding any alleged right of user of any kind, whether easementary or otherwise, the mag. is directed to make an inquiry into the dispute in the manner provided in Section 145 and if it appears to such Mag. that such right exists, he may make an order "prohibiting any interference with the exercise of such right. "

( 5 ) THE words prohibiting any interference with the exercise of such right in Clause 2 and 3 of section 147 have been substituted in place of the words permitting such thing to be done, or directing Such thing not to be done by the Amending Act of 1923. Before the amendment, it was held that a Mag. had jurisdiction to order the removal of an obstruction for the purpose of permitting the exercise of the right, vide Pasupati Natn v. Nando Lal, 5 C. W. N. 67 : (28 Cal. 734 ). Lalit Chandra v. Tarini Prasad, 5 C. W. N. 335; Ambica Prasad v. Gur Sahai, 39 Cal. 560 : (13 Cr. L. J. 184 ).

( 6 ) HAS the change in the language taken away the power of the Mug. to issue such an order ?

( 7 ) TO my mind the change in the phraseology of the section id merely verbal and does not affect the powers of the Mag. in this re