JUDGMENT Mahesh Chandra, J. - The Sub-Divisional Magistrate, Mau Garotha, Jhansi, passed an order under Sec. 147, Criminal Procedure Code, prohibiting Pragi and others from interfering with Harkuney's right of passage of rain water through their plot No. 238 and further ordering them to remove the bundhi from plot No. 238 adjoining plot No. 239 which obstructed the discharge of rain water from plot No. 239 through plot No. 238. Harkuney had filed an application under Sec. 147, Criminal Procedure Code alleging that Pragi and Babu Lal had obstructed the discharge of rain water of plot No. 239 owned by him through plot No. 238 and also plot No. 241. According to Harkuney plots Nos. 238 and 241 were on lower level and the rain water of his plot has been flowing over those plots for more than 50 years and they had, only a month before the application, constructed a bundhi and stopped the flow of water. Pragi and Babu Lal alleged that the bundhi has been in existence for the last four or five years. 2. The Magistrate decided the case on the written statements and affidavits of the parties. 3. Pragi and Babu Lal, went in revision and the Additional Sessions Judge has made a reference to this Court with the recommendation that the order of the Magistrate prohibiting the revisionist from interfering with Harkuney's right of passage of rain water and for demolition of the bundhi be set aside and the case be sent back to the Magistrate again for enquiry and fresh order according to law. 4. The grounds on which the recommendation has been made are that the Magistrate had called for affidavits from the parties in support of their respective cases which he should not have done and that be cause the entire bundhi was affected by the order of the Magistrate rendering plot No. 238 useless while a small opening or removal of a small part of the bundhi would serve Harkuneys purpose. 5. The learned Magistrate has said in his explanation that the order directing the parties to produce evidence was as follows: - ". . . . and further require them to adduce documents by putting in affidavits or to give evidence of such persons as they rely upon in support of such claim." 6. 5. The learned Magistrate has said in his explanation that the order directing the parties to produce evidence was as follows: - ". . . . and further require them to adduce documents by putting in affidavits or to give evidence of such persons as they rely upon in support of such claim." 6. His explanation was that he had not restricted the rights of the parties to file documents and affidavits and had not refused to examine any witness of any party or to call for examination any witness if so required by any party. According to him, the parties themselves preferred not to give any oral evidence and relied only on affidavits and that Sec. 147, Cr. P. C. did not prohibit the use of affidavits by the parties. He also referred to the portion of Sec. 147, Cr. P. C. that "the provisions of Sec. 145, Cr. P. C. shall, as far as may be, be applicable in the case of such enquiry." 7. Sec. 510-A, Criminal Procedure Code deals with evidence on affidavits and runs as follows: - "510-A (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may if it thinks fit, and shall, on the application of the prosecution or the accused summon and examine any such person as to the facts contained in his affidavit." 8. It is evident from a scrutiny of this section that it permits giving evidence by affidavit by that person alone whose evidence is of a formal character and that it is only in those circumstances that the affidavit should be read as evidence in any enquiry, trial or other proceeding under the Code. This is, however, subject to all just exceptions. Such an exception is provided for in Sec. 145, Cr. P. C. where specific provision has been made for putting in affidavits in support of the claims of the respective parties under Sec. 145, Cr. P. C. There is a clear difference in the wordings of Sec. 147, Cr. P. C. and Sec. 145, Cr. P. C. regarding evidence. Such an exception is provided for in Sec. 145, Cr. P. C. where specific provision has been made for putting in affidavits in support of the claims of the respective parties under Sec. 145, Cr. P. C. There is a clear difference in the wordings of Sec. 147, Cr. P. C. and Sec. 145, Cr. P. C. regarding evidence. Sec. 147 (1-A) of the Criminal Procedure Code, as amended in 1955, runs as follows: - "The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible decide whether such right exists, and the provisions, of Sec. 145 shall, as far as may be, be applicable in the case of such inquiry." 9. Sub-Sec. (4) of Sec. 145, Cr. P. C., on the contrary, provides:- "The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, bear the parties and conclude the inquiry, as far as may be practicable, within a period of two months on the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that the Magistrate, lay, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein: Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date : Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section." 10. A comparison of these two sub-sections of Secs. 147 and 145, Cr. P.C. respectively will show that in coming to a decision the Magistrate has under sub-Sec. (4) of Sec. 145, Cr. A comparison of these two sub-sections of Secs. 147 and 145, Cr. P.C. respectively will show that in coming to a decision the Magistrate has under sub-Sec. (4) of Sec. 145, Cr. P.C. only to peruse the statements and documents and affidavits and to hear the parties and to conclude the enquiry within a period of two months from the date of the appearance of the parties before him. On the contrary, under sub-Sec. (1-A) of Sec. 147, Cr. P. C. the Magistrate has not only to peruse the statements and hear the parties but also to receive all such evidence as may be produced by them, consider the effect of such evidence and even to take further evidence, as he thinks necessary. This clearly shows that the emphasis put upon affidavits in Sec. 145, Cr. P. C. is not there in Sec. 147, Cr. P. C. In Sec. 145, Cr. C. the evidence is confined to documents and affidavits. Under sub-Sec. (1-A) of Sec. 147, Cr. P. C. there is no such limitation. The result would be that the provisions of Sec. 510-A, Cr. P. C. would apply to proceedings under Sec. 147, Cr. P. C. and the affidavits are to be restricted to evidence on matters of a formal nature only. The Magistrate has discretion to summon and examine any person whose affidavit has been put in and not to take further evidence as contemplated by Sec. 147, Cr. P. C. 11. So far as the mention of the provisions of Sec. 145, Cr. P. C. and sub-Sec. (1-A) of Sec. 147, Cr. P. C. is concerned it evidently relates to other matters like service of the copy of the order and provisions of sub-Sec. (5) regarding the rights of the parties to show that no such dispute existed or is existing between the parties. The provisions of Sec. 145, Cr. P. C. cannot go against the express provisions of sub-Sec. (1-A) of Sec. 147, Cr. P. C. with regard to the nature of evidence. 12. In Manik Chand v. Bhubneshwar Prasad, A.I.R. 1961 Pat. 278 : 1961 B. L. J. R. 217 K. Sahai, J. held: "The procedure to be followed in a proceeding under Sec. 147 as amended in 1955 is the same as that in a proceeding under Sec. 145 before the amending Act of 1955 came into effect. 12. In Manik Chand v. Bhubneshwar Prasad, A.I.R. 1961 Pat. 278 : 1961 B. L. J. R. 217 K. Sahai, J. held: "The procedure to be followed in a proceeding under Sec. 147 as amended in 1955 is the same as that in a proceeding under Sec. 145 before the amending Act of 1955 came into effect. The procedure in a proceeding under Sec. 145, as amended in 1955, does not apply . . . The words "and the provisions of Sec. 145 shall, as far as may be, be applicable in the case of such inquiry" and sub-Sec. (1-A) of Sec. 147 merely indicate that in respect of other matters of procedure, the procedure to be followed in a proceeding under Sec. 147 will, as far as possible, be the same as that in a proceeding under Sec. 145. As it has been clearly laid down in sub-Sec. (1-A) of Sec. 147 that the Magistrate shall receive all such evidence as may be produced by the parties respectively, and as nothing has been said in that sub-section about adducing evidence of persons by putting in their affidavits, the legislature could not have intended by the words to lay down that affidavits of witnesses could be a substitute for their examination in court even in a proceeding under Sec 147". 13. With respect I entirely agree with the observations of K. Sahai, J. 14. The learned Magistrate was careful in his order regarding the production of evidence not to restrict it to affidavits and documents alone, but he fell into an error when he came to consider the effect of the affidavits on matters which were not of a moraly formal nature. There were two main points considered by him. One was the elevation of the plots of the two parties and the flow of rain water through plot No 238 as a result of the difference in the levels of the various plots. So far as this matter was concerned, it was admitted by Pragi and Babu Lal that the plots belonging to Harkuney were situated on a higher elevation than their plot No. 238. It was also admitted that the rain water flowed directly through plot No. 238. On this point, therefore, the Magistrate could come to the conclusion because of the admission of the opposite parties. It was also admitted that the rain water flowed directly through plot No. 238. On this point, therefore, the Magistrate could come to the conclusion because of the admission of the opposite parties. But he then considered the second point relating to the question whether the bundhi was constructed four or five years back or within a period of three months before the institution of the enquiry. There was no admission of Pragi and Babu Lal. Nor was it a matter merely of a formal nature. It was, therefore not correct to decide it on the basis of the affidavits only and to hold that the bundhi was constructed within a period of three months before the institution of the enquiry I would, therefore, agree with the second Additional Sessions Judge and accept the reference. The order of the Magistrate prohibiting Prag and Babu Lal from interfering with the applicants right of passage of rain water through plot No. 238 and the order of demolition of the Bundhi constructed by Pragi and Babu Lal is accordingly set aside and the case is sent back to the trial court for enquiry and fresh order according to law. I should not, however, be taken to have expressed any opinion on the merits of the case.