JADUBANS DEO Vs. PANDEY BANSIDHAR

JUDGEMENT

(1.) This petition which has been admirably argued by Mr. Sahai is for the revision of an order of the Judicial Commissioner of Chota Nagpur, dismissing an appeal from the Sub-divisional Officer of Daltonganj. The question for decision is as to whether certain proceedings under Section 147, Criminal P.C., are or are not barred as being out of time by reason of the proviso to Sub-section (2). The facts are as follows: The opposite party has a plot numbered 43; plots 282 and 284, belong to the petitioner. On 16 June 1932, the opposite party petitioned the Sub-divisional Officer complaining that his right to discharge water at the time of the rains from his plot 43 on to the land belonging to the petitioner had been obstructed by the petitioner who had raised the level of a certain bank on his own field. In consequence of this obstruction the water flowing from the petitioner's field farther northwards rose and thus prevented the water, which should have come from plot 43, from flowing on to the petitioner's land.

(2.) The Magistrate referred the matter to the police for inquiry, and on 19th August 1932, he issued notice to the petitioner to shew cause why the bank should not be reduced to its former dimensions. On the 13 September of the same year he went into the matter and heard the parties. On the 3 October he delivered his decision and was inclined to find that there had been obstruction to the flow of water committed by the petitioner, but as the rains had by that time completely come to an end and there seemed to him to have been no apprehension of a breach of the peace, he decided that no immediate action was necessary. He said that during the cold weather he hoped to have an opportunity of going to inspect the plots in question and there the matter remained. Nothing was done by the Sub-divisional Officer and on 12 July 1933, the rains having by that time come on again, the opposite party again moved the Magistrate and made a similar complaint.

(3.) On 17 October 1933, the Magistrate started proceedings purporting to be under Section 145, Criminal P.C., but later on, on 17 November 1933, he came to the conclusion that there appeared to be no dispute as to possession of the land and therefore as it is said: "converted the proceedings under Section 145, into proceedings under Section 147" which merely means that he announced that the state of affairs would be governed by Section 147 and that he was only free to apply such remedies as that section permitted. Then on 18 December 1933, he made an order against which an appeal was filed to the Judicial Commissioner, directing the petitioner to remove the obstruction on his own land to the flow of water. The point that was taken before the Judicial Commissioner is some what the same point that has been taken before me. It was argued that the Sub- divisional Officer had not come to a definite finding as to whether the first party, that is to say the opposite party in the case before me, had been enjoying the rights of easement within one year from the institution of this case.