BHOLA MAHTON Vs. BHATTU BAITHA

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure (hereinafter called 'the Code') by the 4th Additional Sessions Judge of Monghyr. It appears that under a misconception of law the learned Additional Sessions Judge has made this reference.

(2.) Bhola Mahton, on whose behalf Mr. Prem Shankar Sahay has appeared in support of the reference, was. the second party in a dispute under Section 147 of the Code. Bhattu Baitha alias Malhu Baitha, on whose behalf the reference has been opposed, was the first party. The eastern half of plot No. 99, khata No. 30, tauzi No. 4000 of village Lagun, P. S. Muffassil, in the district of Monghyr, is the land of the first party on which stands his house. The western half was purchased by the second party by a kebala executed on the 22nd of June, 1957. The dispute relates to the flow and falling of water of the olti of the house of the second party on to the Chhapar of the first party. According to the case of the former, the eaves water of his house have been falling towards the east since long, even since before his purchase and he acquired a right in the nature of easement for the flow of the water on and through the chhapar of the first party. The case of the first party has been that after his purchase Bhola Mahton has reconstructed the old existing room which existed on the eastern side of his house, made it double storey-ed, raised and extended the chhapar and then the water started falling on the chhapar of the first party. The second party did it against the assurance given by him to the first party when he was reconstructing his house and making it double storeyed. The learned Magistrate on a consideration of the evidence of both sides held that Bhola Mahton after purchasing the house reconstructed it in mud a Do-Manjila and due to this new construction the water of the eaves of his chhapar began to fall on chhapar and wall of the house of the first party. The Magistrate, therefore, held that the second party has or had no right to flow his eaves water on the chhapar and wall of the first party and that his claim of right of easement is not established. The order of the learned Magistrate, therefore, is in accordance with Sub-section (3) of Section 147 of the Code.

(3.) The learned Additional Sessions Judge seems to have overlooked that a finding in accordance with the proviso to Sub-section (2) of Section 147 of the Code is necessary to be recorded only when in the first instance it is found by the Magistrate that a right as contemplated under Sub-section (1) of Section 147 exists and he has to make an order prohibiting an interference with the exercise of such right. Thinking that without a finding one way or the other about the period specified in the proviso the order passed by the Magistrate becomes without jurisdiction, the learned - Additional Sessions Judge has made the reference for setting aside the order of the Magistrate.