RAMROOP MAHTON Vs. MANO MIAN

JUDGEMENT

(1.) This is an application in revision by the first party in a proceeding under Section 147, Criminal P.C., in the Court of a Deputy Magistrate of the First Class at Monghyr. The first party are admittedly the owners of two revenue paying villages, Bishanpur Santokh and Amba Icharua. The second party claimed a jalkar right in certain sheets of water in those two villages. The case of the second party is that there is a fishery known as Jalkar Maniar which extends over a large number of villages including the two villages of the first party, that they have a right of fishing in these waters and they have been exercising such right and that the first party were now disputing the right of the second party to fish in those waters.

(2.) The Magistrate at first drew up a proceeding under Section 144, Criminal P.C., but subsequently that proceeding was converted into a proceeding under Section 147. This proceeding was drawn up on 31 January 1933, and the next day, the 1 February, the first party filed an application before the Magistrate objecting to the proceeding being drawn up under Section 147, their case being that the proceeding ought to have been under Section 145. They further referred in that application to certain entries in the finally published record of rights. The learned Magistrate held that the proper proceeding was one under Section 147 and he, refused to consider the record of rights on the ground that it was published more than 30 years ago.

(3.) After the proceedings were served upon the parties and they had filed their written statements and evidence had been gone into and after the close of the arguments the learned Magistrate took in evidence three documents which were marked by him as Exs. M-6, M-7 and M-8, the final order made by him was in favour of the second party prohibiting the first party from interfering with the exercise of the right by the second party. Against the order of the Magistrate the first party came up in revision to this Court and the revision case was heard in the first instance by Macpherson, J., who has referred it to a Division Bench in order that there may be an authoritative decision whether the proceeding should have been under Section 147 or under Section 145.