(1.) This is a Rule arising out of proceedings taken under Section 147, Criminal Procedure Code. In these proceedings the two petitioners were the first party and the present opposite party Harish Chandra Shaha was the second party. In his judgment the Magistrate sets out the respective claims made by the two parties in this way: "The first party in their written statement hold that the passage in question is the landlord s Khas patit land and that they have been using it for more than 20 years and as such have acquired the right of easement of necessity over it. That the second party put a door frame with doors on the western end of the passage and thus completely closed it. Second party in his written statement denies the existence of any such passage as mentioned in the proceedings and any right of easement of the first party whatso-.iver over it. He farther states that the land through which the passage is claimed belongs to him. " The Magistrate rejected the title put forward by the first party to the land as their khas patit land. He held it to be conclusively proved that the land was not the landlord s khas patit but belonged to Harish Chandra Shaha, that is the second party, in the proceedings before him. Then he found that the first party were not in possession of any right of easement and that no such right existed. The order with which ho concludes is thus worded: I, therefore, direct that the first party should not use this passage unless they obtain the decision of a competent Court adjudging them to use it and forbid all disturbances."
(2.) The question raised turns upon the language of Section 147, Criminal Procedure Code. That section runs as follows : Whenever any such Magistrate is satisfied as aforesaid that a dispute likely to cause a breach of the peace exists concerning the right of use of any land or water (including any right of way or other easement over the same) within the local limits of his jurisdiction, he may inquire into the matter in manner provided by Section 145 and may, if it appears to him that such right exists, make an order permitting such thing to be done or directing that such thing shall not be done, as the case may be, until the person objecting to such thing being done, or claiming that such thing may be done, obtains the decision of a competent Court adjudging him to be entitled to prevent the doing of, or to do, such thing, as the case may be. " Then follows a proviso with which we are not immediately concerned.
(3.) The point taken for the petitioners is that the section only empowers the Magistrate to act, if it appears to him that such right exists. It is contended that in the present case the Magistrate found that the right of easement which the petitioners claimed did not exist and having so found he was obliged to stay his hand and had no jurisdiction to make the order which he has made.