ABDUL WAHAB KHAN Vs. MOHD HAMID ULLAH

JUDGEMENT

(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 Hamidullah's) house opening into a lane as also a drain passing through the lane & 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 & 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 & 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 Hamiduallah's house for several years past & 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 Hamiduallah's house flowed. He, therefore, held that the appct. had a right of way over the land through the door & 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 Hon'ble 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.