SOHAN LAL Vs. CHUNNI SINGH AND

JUDGEMENT

(1.) This revision by the complainant in proceedings under Section 147 Cr. P. C. directed against the revisional order of the Sessions Judge by which he set aside the Magistrate's order and dismissed the complainant's application. The record has been summoned and the indisputable position emerging is that the complainant's case was that he had constructed a water channel partly pucca and partly Kachcha through field which now belong to oppositeparties about nine years before the application dated 28-3-1979 and this channel was used for carrying the water of his tubewell. But lately the opposite parties who are Harijans by caste had constructed their own tubewell and were obstructing the flow of the complainant's water through the aforesaid channels which had led to an apprehension of breach of peace. The opposite parties denied that the drains were made pucca by the complainant and claimed the same to be their own. They however admitted that before the construction of their own tubewell they were taking water from the complainant's tubewell. It is also clear from the evidence that the complainant needs the drain in question through the opposite parties field not for carrying water to his own fields but for sale of water for other fields lying beyond the opposite parties' field. In this background the Magistrate after considering the evidence of the parties held that the drain in question had been constructed by the complainant and the opposite party was obstructing the flow of water. He accordingly confirmed the notice under Section 147 Cr. P. C. and directed the opposite parties to allow the water to flow. The session Judge in revision held after analysis of evidence that the drain was not constructed by Sohan Lal nor had he any legal and valid right to flow water in the drain to sell to other cultivators. On these grounds the revision was allowed and the order was set aside. The first ground taken by the Session Judge cannot be sustained. It was not open to him in revision to reconsider the evidence and arrive at a finding of fact of his own contrary to that of the Magistrate so long as the Magistrate's finding was not perverse. There can be no question of this in the present case and therefore the finding that the complainant had not constructed the Pokhta and Kham Nali cannot be upheld as a ground for interference with the Magistrate's order. The position with regard to the other ground that even assuming that the opposite parties had permitted the complainant to construct the Nali when they were also buying water from his tubewell for irrigation of their field the complainant had no legal right to continue this Nali or flow water through it against their wishes is different. Under Section 147 (3) Cr. P. C. the Magistrate is required to make an order prohibiting any interference or removal of any obstruction with the claimed right "if it appears to him that such right exists". Now the mere construction of a Nali through the opposite parties field when the opposite parties are are also buyers of complainant's water is insufficient to create a right to retention of the Nali for user against the defendant's wishes. No prescriptive or customary right is involved in this case. It can only be a question of right by grant. There is no evidence about the terms of the grant. If the channel was required for complainant's own field's irrigation an inference might have been justified that on account of their own gain from the Nali at the time the opposite party had allowed the complainant a right to make the Nali for irrigating his farther fields through that Nali. In such a case the duration of right could also be taken to be permanent unless the contrary were shown. Such an inference however, is not tenable where the water beyond the opposite parties' fields is required only for sale to other cultivators. In the present circumstances of construction of Nali the opposite parties' consent is quite consistent with the consent having been given for their own irrigation purposes withdrawable when they themselves no longer needed this irrigation. If this can entitle the complainants to any damages whether on account of the expenses they incurred in making the Nali or the loss they would suffer by not selling the water is not a question with which we are concerned in the present case. What is material is that the finding that the complainant had no legal right to continue user of the Nali for flowing of his water cannot be regarded as unsustainable. The revision therefore fails and is hereby dismissed. .