JUDGMENT

Dalal, J. - This is an application for revision from an order passed by a Magistrate in the Basti district u/s 137, Criminal P. C , directing that a certain bandh (a wall to prevent the flow of water) be removed. The Court adopted the correct procedure by issuing a notice against the applicants to remove the bandh within a certain time specified in the order, or to appear and show cause against the same. When the applicants appeared, they denied the existence of any public right in the opposite party u/s 139-A. The Magistrate thereupon recorded evidence. There was considerable reliable evidence in support of the denial of the right being a public right. The Magistrate, however, found that there was no such evidence and proceeded as laid down in Section 137, Criminal P. C. The applicants Munna Tewari and others have, therefore, come in revision to this Court because the Magistrate finally made the orders u/s 133 absolute u/s 137, Criminal P. C. For the sake of convenience the persons who desired the removal of the bandh may be called Chandrabali's party, and the persons who built the bandh may be called Munna's party. There is a very large jhil (expanse of water) on Chandrabali's side in village Tal Bharanch alias Bakhra jhil. This village is on a higher level than the village of Ghurapali which belongs to Munna and others. The water flows down from the jhil by a channel to the river Rapti from village Tal Bharanch and village Ghurapali which adjoins Tal Bharanoh. Subsequently the water passes through several villages before it reaches the river Rapti. During the rains there is an expanse of water right up from the jhil to the Rapti, but in the dry season the water has to be prevented from flowing away, and Chandrabali's party have by litigation acquired a right to build a bandh to preserve the water of the jhil during the dry season. Munna's party of the Ghurapali village did the same during the spring, and collected water for their use in their village. In the winter and spring this year there had been rain so this stoppage of water threw the water back on to the village of Chandrabali, and it is alleged that it caused damage there. Chandrabali's party claimed that Munna had no right to build the bandh which he did to stop the water flowing on the river Rapti, and that Chandrabali and his party have a right to prevent all the villages between their village and the Rapti from building a bandh, and thereby preventing the flow of water from Chandrabali's jhil to the Rapti when Chandrabali has surplus water. This very statement of the case will show that Chandrabali claimed a private right, and not a public one. Both the subordinate Courts have relied on a single Judge case of this Court, Bharosa v. Emperor [1911] 34 All. 345 in holding that the right claimed by Chandrabali was a public right, because it affected a very large number of people.

2. In that case, however, the learned Judge observed that the case was on the border line. He made reference to Section 268, I.P.C., in which a public nuisance is defined as an act, or an illegal omission, which causes any common injury, danger or nuisance to the public, or to the people in general who dwell on or occupy property in the vicinity. The injury must be to the people in general, and not to particular people such as cultivators. In the present case the injury is not caused to people in general, whether they be cultivators or artizans, but only to a certain class of people who are agriculturists in the village of Chandrabali. As pointed out by a Bench of two Judges in In re Jaswatsangji Fatesangji [1898] 22 Bom. 988. by the Bombay High Court, not only the way, river or channel, where an unlawful obstruction is made, must be one of public use, but also the obstruction must be of that public use. In the present case the channel is not a public river, but one passing through particular villages, and of which the water is used by the agriculturists on both banks thereof. The ob