KING EMPEROR Vs. ABDULLAH S/O ISMAIL

JUDGEMENT

(1.) After the receipt of a report from the Station Officer, Khapa, that members of. party No. 1 had closed a path leading to a well with tatta fencing and thereby inhibited party No. 2 and their womenfolk from fetohing water from it, the Sub-Divisional Magistrate Saoner, passed a preliminary order on 13 June 1947 under Section 145, Criminal P. C. After evidence had been recorded, he found that the area in question was an open area which the villagers, espe. cially party No. 2, were entitled to use and he ordered that this area be kept open and that party No. 2 be put in possession of it until evicted therefrom in due course of law.

(2.) The Second Additional Sessions Judge, Nagpur, has now reported the case under Section 438, Criminal P. C, with a recommendation that the order which purported to be under Section 145 be so altered as to bring it into conformity with Section 147 (a), Criminal P. C.

(3.) Section 147 relates to a dispute regarding a right of user over land or water whether such right be claimed as an easement or otherwise; and if the Magistrate considers that such right exists, he may make an order prohibiting any in-dereference with the exercise of such right. This is subject to the proviso that no such order shall be made where the right is exercisable at all time3 of the year, unless such right has been exercised within three months next before the institution of the inquiry, or, where the right is exerciaable only at particular seasons or on particular oooa-sions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution. The Magistrate may also make an order prohibiting the exercise of the alleged right if it appears to him that it doss not exist.