RAM NARAIN SAH Vs. PARMESHWAR PRASAD SAH

JUDGEMENT

(1.) This is an application in revision against an order under Section 144, Criminal P.C., passed by the Sub-divisional Magistrate of Bhabua on 8 September 1941. On 23 September, the District Magistrate of Shahabad who was moved in revision against the order of the Sub-divisional Magistrate declined to interfere as he had already considered the merits of the case on a previous occasion and saw no grounds for reconsideration.

(2.) On 21 April 1941, the first party before the Sub-divisional Magistrate (being the opposite party in this Court) complained to the Magistrate that the second party (the petitioners here) were building on their plot No. 268, and that their eaves were encroaching on the complainant's plot (No. 267) which adjoined and that their rain water would fall on the complainants land and cause damage. The Magistrate recorded that he was satisfied that a danger of breach of the peace was imminent and issued notice under Section 144(2) against Ram Narain Sahu of the second party "to refrain from further building his house on plot No. 268 for a period of two months.... Work must stop and he may show cause against the order by 9 May 1941."

(3.) The second party denied any encroachment and the Magistrate had a measurement made by an overseer The overseer reported an encroachment, and the Magistrate gave time to the parties to file further written statements. The second party again denied any encroachment and said that the wall objected to had been already rebuilt on the foundations of an old wall, that the entire open space between the two plots belonged to the second party, and that the first party had already brought a civil suit for the removal of the alleged encroachment. They also filed the mosanna or copy of the plaint of the first party served upon them and urged that the notice issued against them be cancelled. The Sub-divisional Magistrate proceeded on the footing that neither side had dared to challenge the overseer's report, and in the view that "immediate prevention is desirable in order to prevent annoyance to the first party and disturbance of the public tranquillity."