KRISHNA DAS AGRAWAL Vs. DEEN DAYAL AGRAWAL

JUDGEMENT

(1.) THE petitioners have come up to this Court against the order dated the 19th of December, 1970, passed by the learned Sub -divisional Magistrate, Patna City. By the aforesaid order a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter called 'the Code') was converted into a proceeding under Section 147 of the Code and an interim prohibitory order was also passed preventing the petitioners "from making any boundary wall or any other construction till the matter is decided".

(2.) THE short facts relevant for the disposal of this application are these. The opposite party (first party) filed a petition on 31.8.1970 under Section 144 of the Code for restraining petitioner No. 1 (second party) from making construction of a wall on the land of the petitioners attaching to the side of the northern wall of the first party opposite party in Municipal holding No. 111/101. plot No. 345, in Circle No. 179 in Mohalla Jhauganj, Patna City. The learned Sub -divisional Magistrate referred the matter to the Officer -in -Charge Police Station for inquiry and report and on submission of the report by the police, a proceeding under Section 144 of the Code was drawn up against the parties on 7.9.1970. On the 20th of October, 1970 the opposite party first party filed a petition for amending the proceeding by mentioning plot No. 345 also and for addition of petitioner No. 2 as a party to the proceeding. The prayers were allowed and the proceeding was amended accordingly. On the 4th of December, 1970, the opposite party filed a petition for converting the proceeding under Section 144 of the Code to one under Section 147 of the Code. The dispute sought to be raised by the opposite party was to the effect that the construction of the boundary wall by the petitioners on their own land would obstruct the passage of light and AIR in the building of the opposite party which was just adjacent to the land of the petitioners. By the impugned order, as already stated, the proceeding was converted into one under Section 147 of the Code and an interim prohibitory order was passed against the petitioners.

(3.) THE second point urged on behalf of the petitioners was that in any event, there was no provision for an interim prohibitory order restraining the rightful owner from exercising his rights of ownership till a decision after the inquiry is made holding the opposite party first party to be entitled as of right to the exercise of such a right of user over the land in question. It was urged that the interim order, therefore, must be set aside. In my view, there is sufficient force in this contention of learned Counsel for the petitioners. Section 147 of the Code provides that on a dispute being raised which is likely to cause a breach of the peace regarding any alleged right of user, the Magistrate may make an order stating the grounds of his being so satisfied and requiring the parties concerned to appear and to put in written statements of their respective claims. After the written statements are filed, the Magistrate must peruse the statements so put in, hear the parties, receive all such evidence as may be produced, consider the effect of such evidence and then decide whether any such right exits. If it then appears to the Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right of user subject to the conditions mentioned in the proviso to Sub -Section (2) of Section 147 of the Code. If after considering the effect of the evidence, the Magistrate is not satisfied that such a right exists, then the proceedings would be dropped. and any final prohibitory order made under the provisions of this section shall be made subject to any subsequent decision of a competent Civil Court. There is thus no provision in this section for any interim prohibitory order restraining the rightful owner from exercising his rights of ownership and possession. The wisdom of the Legislature in not providing for any such interim preventive order can well be seen for the obvious reason that so long as the right of user by way of easement or otherwise over the land belonging to others is not established at the inquiry and by evidence aliunde, no order in favour of a person claiming such right of user over the land belonging to others can be passed. It would be ridiculous if merely for the asking by a person who merely sets up a so -called claim or right of user over the land of others, the rightful owner is prevented from exercising his right of ownership over his land. The Statute, therefore, does not contemplate that any order of restraint upon the rightful owner be passed before the right of user set up by another person is duly established by evidence at the inquiry. I would, therefore, hold that that portion of the impugned order by which the petitioners have been prevented from making any boundary wall or any other construction till the decision by the learned Magistrate is bad and must be set aside.