HARIHAR SAO Vs. SHYAMDEO PRASAD

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for the opposite party. Petitioners are aggrieved by the order dated 10.6.2008 passed by the learned Sub-Divisional Magistrate, Bermo at Tenughat, in Case No. 2 of 2006, whereby the order passed under Section 133 of the Cr.P.C., directing the 2nd party-petitioners for opening the drainage of the water of the house of the 1st party, passing through the land of the 2nd party, has been made absolute by the Court below.

(2.) From perusal of the impugned order, it is apparent that this is a case of dispute between two private parties. The proceeding was initiated on the application filed by the 1st party-opposite party alleging that the passage of the water from his house was illegally blocked by the members of the 2nd party-petitioners. The 1st Party claimed to be the owner the plot No. 547 in Khata No. 4, measuring 52 decimals, situated in Village-Baridari, P.S.-Mahuatand, District-Bokaro, on which, the 1st party has constructed his house and the sewerage water of the said house had a passage towards an open land, which was allegedly closed by the members of the 2nd party, causing obstruction to the flow of the sewerage water. The case of the 2nd party petitioners is that, they are the purchasers of that adjoining plot bearing No. 548, in the khata No. 36, measuring 20 decimals and they have built their house on that plot. It appears that one Rajswa Karmchari was directed by the Court below to submit report after taking the measurements, who submitted his report stating that no measurement could be done at the spot. Thereafter, on the basis of the said report and the averments made by both the parties, the order directing the 2nd party-petitioners to give the passage for the sewerage water through their land, was made absolute by the Court below. The said order is under challenge in the present revision application.

(3.) Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, there is no nuisance at any public place, rather this is a dispute purely between two private parties, having adjacent private lands and houses. Learned counsel has also submitted that the impugned order has been passed without making due enquiry into the matter under Section 137 of the Cr.P.C., and accordingly the impugned order cannot be sustained in the eyes of law.