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1969 DIGILAW 107 (PAT)

Bhola Mahton v. Bhattu Baitha

1969-07-23

N.L.UNTWALIA

body1969
Judgment N.L.Untwalia, J. 1. This is a reference under Sec. 438 of the Code of Criminal Procedure (hereinafter called the Code) by the 4th Additional Sessions Judge of Monghyr. It appears that under a misconception of law the learned Additional Sessions Judge has made this reference. 2. Bhola Mahton, on whose behalf Mr. Prem Shankar Sahay has appeared in support of the reference, was. the second party in a dispute under Sec.147 of the Code. Bhattu Baitha alias Malhu Baitha, on whose behalf the reference has been opposed, was the first party. The eastern half of plot No. 99, khata No. 30, tauzi No. 4000 of village Lagun, P. S. Muffassil, in the district of Monghyr, is the land of the first party on which stands his house. The western half was purchased by the second party by a kebala executed on the 22nd of June, 1957. The dispute relates to the flow and falling of water of the olti of the house of the second party on to the Chhapar of the first party. According to the case of the former, the eaves water of his house have been falling towards the east since long, even since before his purchase and he acquired a right in the nature of easement for the flow of the water on and through the chhapar of the first party. The case of the first party has been that after his purchase Bhola Mahton has reconstructed the old existing room which existed on the eastern side of his house, made it double storey-ed, raised and extended the chhapar and then the water started falling on the chhapar of the first party. The second party did it against the assurance given by him to the first party when he was reconstructing his house and making it double storeyed. The learned Magistrate on a consideration of the evidence of both sides held that Bhola Mahton after purchasing the house reconstructed it in mud a Do-Manjila and due to this new construction the water of the eaves of his chhapar began to fall on chhapar and wall of the house of the first party. The Magistrate, therefore, held that the second party has or had no right to flow his eaves water on the chhapar and wall of the first party and that his claim of right of easement is not established. The Magistrate, therefore, held that the second party has or had no right to flow his eaves water on the chhapar and wall of the first party and that his claim of right of easement is not established. The order of the learned Magistrate, therefore, is in accordance with Sub-section (3) of Sec.147 of the Code. 3. The learned Additional Sessions Judge seems to have overlooked that a finding in accordance with the proviso to Sub-section (2) of Sec.147 of the Code is necessary to be recorded only when in the first instance it is found by the Magistrate that a right as contemplated under Sub-section (1) of Sec.147 exists and he has to make an order prohibiting an interference with the exercise of such right. Thinking that without a finding one way or the other about the period specified in the proviso the order passed by the Magistrate becomes without jurisdiction, the learned - Additional Sessions Judge has made the reference for setting aside the order of the Magistrate. 4. It is well settled so far this court is concerned that the requirement of the proviso to Sub-section (2) of Sec.147 of the Code is mandatory provided a declaration as to the existence of the right claimed by a party is made by the Magistrate : Vide Grant V/s. Padarath Jha, AIR 1921 Pat 48G, Sirkawal Singh V/s. Bhuja Singh, AIR 1924 Pat 784, Trijogi Narain Singh V/s. Kamta Prasad, AIR 1955 Pat 265 and Chaturgun Turha V/s. Jamadar Mian, AIR 1961 Pat 374 . 5. But there is no question of recording a finding in accordance with the pro- viso to Sub-section (2) of Sec.147 of the Code if the Magistrate be of the view that the right claimed by a party does not exist and then the Magistrate proceeds to make an order prohibiting an exercise of the alleged right. On the findings recorded by the Magistrate in this case, it is clear that the span of the period during which the eaves water from the chhapar of the second party fell on the wall and the chhapar of the first party was too short to enable the Magistrate to declare the existence of such a right as claimed by the second party in his favour. He had purchased the house in the year 1957. He had purchased the house in the year 1957. The finding of the Magistrate was that after his purchase he reconstructed the house Do-Manjila and thereafter the eaves water of the chhapar started falling on the wall and chhapar of the house of the first party. The learned Magistrate seems to have believed the evidence of Ghughu Baitha .in cross-examination when he said that Bhola demolished the entire old house and had constructed the pucca double storeyed building about 11/2 years ago. Although it may not be necessary to establish the existence of the right claimed by a party under Sec.147 of the Code for the entire requisite period of 20 years or more as observed by the Calcutta High Court in Srimanta Bera V/s. Indra Narayan Prodhan, (1909) 10 Cri LJ 292, it is clear that exercise of such a right for a short period is not sufficient to enable the Magistrate to make an order in accordance with Sub-section (2) of Sec.147 of the Code. In the cases referred to above, it would be found that the right was claimed or found to have been exercised for a long period or from time immemorial. That the period of exercise of such right must be long will appear from some of the observations made by a learned Single Judge of the Madras High Court in Kanta Venkanna V/s. Inuganti Venkata Surya Neeladri Rao, AIR 1930 Mad 865 and by a Bench of this Court of which I was a member in Bhagwati Prasad V/s. L. N. Keshri, 1960 BLJR 84. In Bhagwati Prasads case, 1960 BLJR 84, Sahai, J. said at p. 87, column 1- "......... It seems to me that the right referred to in that section is a legal right and not just bona fide claim of right. If the Magistrate finds, upon evidence adduced before him, that a party claiming the right has been exercising it for a long time -- not permissively or otherwise but on assertion of the right of user -- the Magistrate may, for the purpose of a proceeding under this section, presume, in the absence of anything to the contrary, that the party has a legal right to the user. He cannot raise any such presumption merely on the basis of circumstances which suggest the existence of a right; there must be positive evidence to show long user." The passage extracted above does lend support to the view I have taken that the right claimed must be shown to have been exercised for a long time and not for a few years as has been found in this case by the learned Magistrate. 6 In the result, the reference Is rejected and the rule is discharged.