K VENKATASWAMY REDDIAR Vs. PARTHASARATHY

JUDGEMENT

(1.) THE aggrieved "A" party before the learned Sessions Judge of South Arcot District at Cuddalore, in Crl.R.C. No.51 of 1986 dated 24.2.1987 preferred against the order of learned Executive II Class Magistrate, Cuddalore, made in M.C. No.6 of 1986 dated 31.7.1986 is the re vision petitioner herein, who challenges the propriety and legality of the impugned order setting aside the order passed by learned Executive Magistrate under Sec. 145 of the Code of Criminal Procedure.

(2.) THE revision petitioner being "A" party appears to have moved before learned Executive Magistrate, Cuddalore M.C. No. 6 of 1986 under Sec. 145 of the Code of Criminal Procedure against "B" party by name, Parthasarathy, who is the respondent herein, alleging that there arose a dispute over the backyard lane in which both the "A" and "B" parties along with their followers are claiming right of way as well as allowing the drainage water through the same, that in consequence thereof there is every, likelihood of breach of peace and that therefore, a suitable restraint order is prayed for to be issued against "B" party, the respondent herein. On the report obtain from the concerned police, learned Executive Magistrate above referred to, has called for the documents and other statements from the respective parties, in order to have an enquiry under Sec. 145 of the Code of Criminal Procedure and ultimately held that since the revision petitioner-A party had purchased the lane situate behind his house by virtue of a sale deed dated 5.6.1979 and no document has been produced by "B" party and since the document produced by "A" party pertains to the acquisition of the right of way over the said piece of land and so, passed an order restraining the respondent "B" party and his followers not to obstruct or interfere with the use and enjoyment of the said lane by the revision petitioner. It was also the finding of learned Executive Magistrate that the claim of the revision petitioner "A" party that he is allowing the drainage of his house through the disputed lane from time immemorial is true. Though the said allowing of the drainage from the house of the revision petitioner was objected to on the ground that it was not borne out by any documentary evidence and that as the dispute relates not with regard to any land or weather as defined under the Act, the enquiry conducted by learned Executive Magistrate under Sec. 145 of the Code of Criminal Procedure is not proper, however, both the objections were negatived by learned Executive Magistrate. In the revision preferred against "A" party on the order passed by learned Executive Magistrate, learned Sessions Judge, while considering the whole gamut of the entire case, has held that by virtue of the document viz., sale deed dated 15.6.1979, "A" party has purchased only the right of way in the suit lane and definitely not any right to allow sullage or drainage water through the said lane. In this context, learned lower revisional Judge has noted the objection of "B" party that just as the right of the "A" party, "B" party has also got right of way over the disputed lane, but, however, he has no objection for the "A" party to use the disputed lane for the purpose of walking as right of way, but definitely not to allow the drainage and sullage water coming out from his house and if that is allowed, he would be seriously prejudiced. In the context of the said objection, lower revisional Judge has found that what was been purchased by the "A" party through the abovesaid sale deed is only the right of way over the disputed lane, but, not the right of allowing the drainage. Learned Sessions Judge has found that the restraint order passed by learned Executive Magistrate, prohibiting the "B" party from preventing the "A" party to allow the drainage is not correct and therefore, set aside the same. While doing so, learned Sessions Judge also held that the enquiry conducted by learned Magistrate under Sec. 145 of the Code of Criminal Procedure instead of Sec. 147 of the Code of Criminal Procedure does not vitiate the proceedings and that therefore, it is maintainable. Thus, in short, the impugned order passed under Sec. 145 of the Code of Criminal Procedure by learned Executive Magistrate was virtually varied and set aside by learned Revisional Judge in the first revision. Aggrieved at this, the affected "A" party has come forward with this second revision before this Court.

(3.) IN the result, for the aforesaid reasonings, the revision fails and the same is dismissed. Consequently, the order passed by learned Sessions Judge in Crl. R.C. No. 51 of 1986, dated 24.2.1987 is hereby confirmed and maintained.