FEKU PASWAN Vs. SIBU CHOUDHARY

JUDGEMENT

(1.) THIS application in revision by members of the second party arises out of a proceeding under Section 147 of the Code of Criminal Procedure. Admittedly, the petitioners and the opposite party, who were members of the first party in the Court below, have got their houses contiguous to each other the house of the petitioners being to the north of that of the opposite party. The case of the opposite party was that the water of their courtyard used to emanate through a drain towards the north, and, after taking a turn towards the east, used to fall in a pyne; but it was stopped by the petitioners.

(2.) THE only question of substance, which has been urged on behalf of the petitioners, is that, as according to the opposite party, the water of the drain used to flow on their own land, it was not a case of user and the proceeding under Section 147 of the Code of Criminal Procedure was misconceived. Opposite Party No. 1 Sibu Choudhary, who examined himself as First Party Witness No. 3, has stated in his evidence that his drain used to flow through his own land and he had never any concern with the lands of Feku (petitioner No. 1). It would thus appear that the opposite party claimed to have been using the land as an incident of ownership. The term 'user' used in Section 147 of the Code of Criminal Procedure connotes user by way of legal right, but distinct from the use of the land as an owner.