THANKASWAMY PADAYACHI Vs. SRIDHARAN

JUDGEMENT

(1.) THE respondent B-Party in M. C. 13/1974 on the file of the Sub-Divisional Judicial Magistrate and Sub-Collector, Chidambaram, have filed this revision petition seeking to revise the order of the lower Court under Section 147 (3), Criminal Procedure Code directing the channel in dispute to be restored and the obstruction to the path to be re-moved.

(2.) THE respondent herein belonging to A-party filed a petition under Section 147, Criminal Procedure Code, requesting the lower Court to restore to its original position the obliterated patta channel running south of R. S. 106/1 and 106/3 and north of R. S. 106/6, 106/10 and 106/11 and ending in R. S. 104/3 of Chinnanergunam village, Chidambaram taluk, within the limits of the jurisdiction of the lower Court, for irrigation purposes and also to restore the fence put up in R. S. 107/1 of the said village for the free usage of pedestrians and for taking cattle for agricultural operations. Both parties filed their respective written statements in respect of their claims over the channel and usage of the pathway. Four witnesses on the side of the A-party and four witnesses on the side of the B-party including the respective parties were examined. Exs. A-1 to A-4 are the four documents marked in this case. After a perusal of the records and scrutinising the evidence, the learned Magistrate of the lower court has passed the above order. Aggrieved by this order, the B-party has come forward with this revision petition, mainly contending that the lower Court has erred in not giving a finding on the casement rights as such claimed by the A. party (respondent herein) in respect of the alleged channel and the pathway and failed to consider whether the rights, if any, have been lost by non-user over the years as contended for by the B-party the petitioners herein, and that the said order passed for restoration of the channel as detailed as per the Field Measurement Book is beyond the purview of Section 147, Criminal Procedure Code. Besides, he has also raised the contention that the evidence adduced in this case is not sufficient warranting the lower Court to pass such an order.

(3.) SECTIONS 129 to 148 under Chapter X of the Criminal Procedure Code, 1973 (Act II of 1974), deal with maintenance of public order and tranquillity in general, of which Sections 145 to 148 come under the sub-heading "d" (disputes as to Immovable property ). Section 147 deals with disputes concerning right of use of land or water. This section and similar other sections of the Code are not intended to give to the Magistrate power to decide disputes relating to the rights of the parties. The sole object behind these sections is to prevent breach of peace and if a Magistrate finds that there is a likelihood of breach of peace and that it is due prima facie to the wrongful act of a person, he can, by invoking these sections, direct that wrong-doer to desist from doing the wrongful act. It is well-settled that in passing such an order under these sections, the Magistrate must bear in mind that his jurisdiction under these sections is confined only to preventing breach of peace and that he is not expected to hold complicated enquiries as to title and try to adjudge the same. No doubt, the orders passed under these sections are intended to be only of a temporary nature till the rights of the parties are finally settled by competent Courts. Section 147 is aimed at prevention of a breach of peace, mostly regarding a claim to a right of way or to a right of water for purposes of irrigation. Disputes in respect of the actual possession of land, water or boundaries thereof are not within the ambit of this section, but those disputes come only within the purview of Section 145. Though the learned Magistrate has not specifically stated in her order anything regarding the existence of the breach of peace, for initiation of the proceedings under this section, I find from the records that while passing a preliminary order under Section 147 (1), it is stated thus: During the personal inspection of the site, I saw a dispute between both the parties and the lands remain uncultivated due to the obliteration of the detailed channel which meant for the irrigation to the lands owned by the 'a' Party. I am satisfied that a dispute likely to cause breach of peace exists between 'a' Party and 'b' Party mentioned above concerning the obliteration of the detailed channel described below within the local limits of the jurisdiction of this Court regarding the restoration of the channel. . . . Thus, it is seen that the proceedings under this section were initiated only after the Magistrate had satisfied herself that there was a dispute likely to cause breach of the peace regarding the alleged right of user of land and water. It may be noted here that it is not necessary for the Magistrate to find that a right of casement strictly so called is established, because Section 147 (1) reads, "whether such right be claimed as an casement or otherwise". Therefore, a plain reading of this section would show that the Magistrate, while passing an order under this section has to satisfy himself whether the petitioner seeking the remedy had a right to the flow of water for purposes of irrigation through a certain channel. After going through the order of the lower Court, I am fully satisfied that the Court below has fully gone through the written statements and evidence on record and then had arrived at a clear finding on the points in issue between the parties. For the above discussions, the first contention raised by the learned Counsel falls to the ground.