ORDER V. Khalid, J. 1. This revision from an order passed by the Executive First Class Magistrate, Palghat in M. C. No. 2 of 1971 raises an important point as to the scope and jurisdiction of a Magistrate under section 147 Cr.P.C. The defeated B Party is the petitioner before me. 2. On receipt of a petition on 30th December 1970 from the A Party that the B Party had obstructed him from using the water from Meenkara river, the Magistrate called for a report from the police, Palghat. The police reported that a dispute with regard to taking of water from Meenkara river existed and that there was the likelihood of an imminent breach of the peace and, therefore, requested the Magistrate to take proceedings under section 145 Cr. P.C. The Magistrate called for a further report and on being satisfied that a dispute concerning the right of user of water existed, he initiated proceeding, under section 147 Cr.P.C. instead of taking action under section 145 Cr. P.C, as was requested by the police. The Magistrate issued a preliminary order on 1st March 1971 and directed the parties to appear before him on 20th March 1971. Both the parties appeared and filed written statements. 3. A Party is an agriculturist having cultivation of 10 acres of paddy land in Muthalamadaamsom abutting the Meenkara river. A Party has been cultivating the lands with the water taken from that river situated in Kerala State for a long time past. He is a lessee under the Kollengode Rajah. 4. According to the A Party, B Party is not a riparian owner and has no right to take water from the river or disturb A Party from taking water from the river. In an additional written statement filed by him, A Party stated that he has been taking water even in November and December, 1970 and January and February, 1971. 5. B Party No. 1 is the father of B Party No. 2. In an additional written statement filed by him, A Party stated that he has been taking water even in November and December, 1970 and January and February, 1971. 5. B Party No. 1 is the father of B Party No. 2. According to B Party No. 1 he had filed a suit, O. S. No. 108 of 1949 before the Sub Court, Palghat, for an injunction to restrain one Alagappa Gounder, the predecessor-in-office of A Party, from taking water from arty part of the river lying between the anicuts L and A marked in the plan attached to the plaint and also to restrain him from interfering with the rights of the B Party from taking, water from the anicut A. He has disputed that the A Party has any right either as riparian owner or otherwise. It is also stated that as a counterblast to that suit, a suit was caused to be filed by one Thirumala Chetty as O.S. No. 18 of 1950 in the Sub Court, Palghat for a mandatory injunction to demolish the dam at point A. Both the suits were dismissed. Appeals were filed which were ultimately numbered as A.S. 715/51 and A.S. 283/55 of the Madras High Court. The Madras High Court by a common judgment allowed the appeal filed by B Party No. 1. 6. B Party also contends that the A Party had applied to the District Collector for permission to take water from the portion of the river lying between the anicuts L and A and the District Collector by his proceedings dated 12th February 1969 passed orders dismissing the same stating that A Party has no right to take water from the river. B Party had also applied to the Collector. His application was also dismissed. B Party applied to the Government and the order passed by the Collector was set aside in favour of B Party. A Party has not disclosed so far as to what happened to the appeal filed by him to the Government. B Party does not admit that A Party had at anytime exercised the right to take water from the river. 7. Seven witnesses were examined on the side of A Party and nine documents were produced on his side. The B Party examined one witness and produced nine documents. 8. B Party does not admit that A Party had at anytime exercised the right to take water from the river. 7. Seven witnesses were examined on the side of A Party and nine documents were produced on his side. The B Party examined one witness and produced nine documents. 8. The Executive First Class Magistrate after considering the issues involved in the case came to the conclusion and he expressed himself in paragraph 15 of his order, thus : "In the result, I have no hesitation in arriving at a finding that the right of user of Meenkara river water between L and A anicuts exists for A Party and Nos. 1 and 2 of B Party, their agents, servants or assignees are hereby prohibited from making any interference1 with the exercise of such right. This order is however subject to any subsequent decision of a civil court of competent jurisdiction:" 9. Two questions arise in this revision : (1) whether there is a legal right in favour of the A Party to entitle him to an Order under section 147; (2) what is the effect of the decree in A.S. 283/55 of the Madras High Court? Incidentally, the maintainability of the revision was also raised. 10. The learned counsel for the petitioners contended that the provisions of section 147 Cr.P.C, can be only when A Party establishes the existence of a legal right, which right is threatened and which has caused imminent breach of the peace. According to him, there is a clear distinction between the provisions under section 145 and under section 147 of the Cr.P.C. Under section 145, the Magistrate is concerned only with actual possession of the property at the relevant time while under section 147, the Magistrate is vitally concerned with the legal right available to the party who has invoked his jurisdiction and if the party does not establish a legal right, then the Magistrate has no jurisdiction to act under section 147, even though there may be a breach of the peace. , 11. , 11. In support of this contention, the learned counsel for the petitioners brought to my notice a few authorities: In Agni Kumar Das v. Mantazaddin and another A.I.R. 1928 Calcutta 610 a Full Bench consisting of five Judges of the Calcutta High Court held : "The words 'actual possession' in sub-section (1), section 145, mean actual physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings under section 145, and the word 'dispute1 in the same sub-section means actual disagreement existing between the parties at the time of the proceedings under section 145 even though the question as to the right to possession has already been decided by a civil court." This case was relied upon by the counsel for the petitioner to substantiate his contention that in a proceeding under section 145 of the Criminal Procedure Code, the learned Magistrate is not bound to respect the findings of the civil court if he is satisfied that on the relevant date, the party who invokes his jurisdiction under section 145 has been in actual possession, although wrongful. 12. In Ambika Pandey v. Gokul Pandey A.I.R. 1960 Patna, 189 a Division Bench of Patna High Court has observed thus: "In proceeding under section 145 of the Code of Criminal Procedure, the court without reference to the merits of the claim of any of the parties to a right to possess the subject of a dispute, is only to decide whether any or which of the parties at the relevant time is in possession of immovable property: but in a proceeding under section 147 of the Code, the court has to come to a finding whether the right claimed by the parties of user of any land or water does exist, and after coming to a finding that such a right exists, he has to find further whether any of the parties has been exercising that right within three months of the date of the proceeding..." The learned counsel contends that the clear distinction between a proceeding under section 145 and section 147 of the Criminal Procedure Code has been clearly brought out by Their Lordships in this case. While under section 145 it is only actual possession and not right to possession that has to be decided, in a proceeding under section 147 the Magistrate has to find whether the right claimed does exist. 13. In Sethukaruppan v. Peer Mohammed Sammatti A.I.R. 1935 Madras 350 this matter is very clearly brought out again by a Division Bench. The court held that in a proceeding under section 147 there should not only be a dispute regarding an alleged right of user of any land or water but that ft must appear to the Magistrate that such right exists. By right is meant, of course, legal right. Again in Srinivasa Perumal v. Sellapapammal 1971 (I) M.L.J. 194 a single Judge of the Madras High Court while discussing the distinction between section 145 and section 147 speaks thus: "There is an essential distinction between sections 145 and 147. The former concerns with the disputes relating to possession and the Magistrate is concerned with actual possession of the property at the relevant point of time and against apprehension about the breach of the peace. But, section 147 concerns itself with disputes about rights to the use of immovable property, unlike the right to be in possession, about which section 145 speaks." It is, therefore, clear that in a proceeding under section 147 the most important consideration is to find out the foundation of the legal right on which the party's claim is based. 14. From the petition filed by A Party to initiate proceedings under section 147 and from the two written statements filed by him in answer to the preliminary order it is not possible to ascertain the foundation of his right. His case is that he has been cultivating the property with the water from the Meenkara river and that he is a riparian owner. It is in this connection that the judgment of the Madras High Court in A.S. No. 715 of 1951 and A.S. No. 283 of 1955 has to be considered. I was taken through this judgment in full. 15. Very serious controversy exists between the parties as to the real import of this judgment. According to the A Party this is a conditional decree and unless the condition is satisfied, no right flows from the decree. I was taken through this judgment in full. 15. Very serious controversy exists between the parties as to the real import of this judgment. According to the A Party this is a conditional decree and unless the condition is satisfied, no right flows from the decree. B Party has not satisfied the condition and hence that decree cannot be pressed into service by the B Party to defeat his right. 16. B Party equally forcefully contents that the decree has categorically denied any right to the A Party to take water and as such the very foundation of the A Party's right has disappeared. Whatever be the condition imposed by the decree*against B Party, there is a clear declaration by the decree against A Party, which destroys any right in him to take water. It will be useful to refer to portions of the decree relevant for our purpose. 17. Unhappily, the paragraphs in the judgment are not numbered. After discussing the facts of the case, somewhere in the middle, Their Lordships observed as follows : "Even in this deposition as D.W. 4 there is no case put forward by the first defendant that he had any customary right or has been taking water from the river bed between L and A. We have carefully considered the evidence of the defendants' witnesses on this point and we are not able to find any such claim put forward. Whereas the evidence, oral and documentary, on the side of the plaintiff is to the effect that the first defendant has not been using water in that manner." The first defendant is the predecessor-in-interest of A Party. Whereas the evidence, oral and documentary, on the side of the plaintiff is to the effect that the first defendant has not been using water in that manner." The first defendant is the predecessor-in-interest of A Party. In another portion of the judgment, Their Lordships have observed: "From a view of the evidence, oral and documentary, we have no doubt whatever that the plaintiff is entitled to take water for irrigating his lands from the Meenkara river by bunding it up at the place marked A in the plan and that his predecessors-in-title had also been doing the same." Again at another portion, Their Lordships would say: "In our opinion the first defendant has not shown that he is entitled to cut the bund between the anicuts L and A and take water by diverting the channel into a pit." Lower down in the same paragraph, Their Lordships make this categorical and unambiguous declaration of the absence of the first defendant's right: "The first defendant will under no circumstances be entitled to take any water from the river between L and A. The mandatory injunction asked for by the plaintiff is granted. The first defendant is prevented from interfering with the plaintiff's right to take water through the chal in existence to his lands bearing survey numbers 934 and 935, etc., and he is restrained from cutting the Bund of the river and diverting water at any place between points L and A." These observations by the Madras High Court are relied upon by the learned counsel for the petitioners to contend that the A party has absolutely no legal right to initiate proceedings under section 147 Criminal Procedure Code. The right which he put forward before the High Court was negatived and that being so, there does not exist any right in him to move the Court under section 147. 18. The operative portion of the judgment runs as follows: "The appeal is allowed and O.S. No. 108 of 1949 is decreed on condition that the plaintiff demolishes the existing cement anicut and puts up in its place a bund made of mud and earth as it was before and as had been the custom for a long time.. 18. The operative portion of the judgment runs as follows: "The appeal is allowed and O.S. No. 108 of 1949 is decreed on condition that the plaintiff demolishes the existing cement anicut and puts up in its place a bund made of mud and earth as it was before and as had been the custom for a long time.. " This condition is forcefully pressed into service by the learned counsel for the respondent to contend that the decree declaring B Party's right was made conditional of his satisfying the requirement of demolishing the existing cement anicut. He argues that so long as this has not been done, the B Party does not derive any right from the decree and, therefore, he cannot restrain the A Party by an injunction from taking water from the river. This is not wholly right. According to me, although for, enforcement of the decree by the B Party, the condition has to be satisfied, that cannot be urged by the A Party in a proceeding under section 147, where he has to satisfactorily prove the existence of a legal right. His right has been clearly negatived by the decree in A.S. No. 283 of 1955. That right does not revive by the fact that the B Party did not conform to the conditions imposed against him by the decree. When Their Lordships declare unambiguously that the first defendant will under no circumstances be entitled to take water from the river between the anicuts L and A, there is a declaration rejecting any right available to A Party for moving the court under section 147. I am in full agreement with the learned counsel for the petitioners that the A Party has hopelessly failed in this case to establish any legal right to enable him to initiate proceedings under section 147 Cr.P.C. It has to be noted that the connected suit by a 3rd Party was for a mandatory injunction to demolish the dam at point A. Both the suits were disposed of by a common judgment and the condition imposed is regarding the dam at A. The B Party's suit was only for an injunction against the A Party. 19. The next contention urged by the learned counsel for the petitioners is that section 147 lays down that the order passed by a Magistrate is subject to the decision of a competent Civil Court. 19. The next contention urged by the learned counsel for the petitioners is that section 147 lays down that the order passed by a Magistrate is subject to the decision of a competent Civil Court. The point to be considered is whether this would be so even in cases where there is already a decision of the Civil Court of competent jurisdiction on the points at issue. 20. In this connection, my attention has been invited to the decisions reported in Anya Shidya, In re A.I.R. 1927 Bombay 654 in Hitlal v. Bhikhari A.I.R. 1952 Patna 251, and in M. C. Pally v. Rev. B. Kambil and others 1968 K.L.T. 503 In Anya Shidya, In re A.I.R. 1927 Bombay 654 a Division Bench of the Bombay High Court decided as follows: "If the matter which is in dispute under section 147 has actually been adjudicated upon by a Civil Court then a Magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that Court's decree." In Hitlal v. Bhikhari A.I.R. 1952 Patna 251, it is laid down as follows: "A proceeding under section 147 is a quasi civil proceeding. If, therefore, the question at issue between the parties has already been the subject-matter of a suit in the Civil Court, the trying Magistrate has no jurisdiction to institute the proceeding." Again in M. C. Pally v. Rev. If, therefore, the question at issue between the parties has already been the subject-matter of a suit in the Civil Court, the trying Magistrate has no jurisdiction to institute the proceeding." Again in M. C. Pally v. Rev. S. Kambil and others 1968 K.L.T. 503 , Raghavan, J., (as he then was) has clearly laid down the scope of an order of Civil Court as follows: "When a civil litigation is pending, the Criminal Court will do better to take action either under section 107 or under section 144, though the pendency of the civil litigation does not by itself deprive the Criminal Court of its jurisdiction under section 145 or under section 147: the Civil Court has the power primarily to decide disputes regarding immovable property and the Criminal Court must give effect to the decision of the Civil Court: the Criminal Court must always treat the order of the Civil Court, if one is in existence though it be an interim order, as to have settled the dispute between the parties: but if subsequent to that order (it is here that the question whether the order of the Civil Court is recent or, old becomes relevant) there has been a change in the situation, the Criminal Court may take that also into consideration in shaping its order: and in taking the last mentioned course, the Criminal Court must always act cautiously bearing in mind that its function is only to prevent a breach of the peace and it is the function of |he Civil Court to settle disputes regarding possession or user of immovable property." These decisions clearly establish that the existence of decrees of competent Civil Court adjudicating the right of parties should override the decision of a Criminal Court and the Court acting under section 147 is bound by the decree of a competent Civil Court. Of course, in this case it can be argued that the decision of the Civil Court was as early as 1956 and as such it is not a judgment of recent origin, and, therefore, need not be respected by the Court acting under section 147. It is to meet such a situation and such an argument that the observations of Raghavan, J. (as he then was) in 1968 K.L.T. 503 comes to the assistance of the Court. It is to meet such a situation and such an argument that the observations of Raghavan, J. (as he then was) in 1968 K.L.T. 503 comes to the assistance of the Court. The existence of a decree of a Court of competent Civil Jurisdiction can be overlooked only if after the passing of the decree new circumstances arise so as to destroy the effectiveness of that decree. For example, new statutes may come into being conferring new rights on parties. Or parties may enter into fresh agreements creating new rights. If such new circumstances exist, they could be effectively put forward to defeat the rights available in a decree of a court of competent Civil Jurisdiction. But in this case no such thing exists. The A Party does not put forward any right de hors the decree in Ext. B-6. What is more, A Party does not clearly indicate how the decree against him is to be ignored in considering his right under section 147. The learned Magistrate has fallen into a serious error in not properly considering the effect of the decree Ext. B-6 in evaluating the rights between A and B Party. I hold that Ext. B-6 is a complete answer to the case put forward by the A Party. The evidence of the A Party in this case also does not clearly give any indication as to what is the right newly acquired by him to enable him to initiate proceedings under section 147 of Criminal Procedure Code, ignoring the findings of the Madras High Court in the appeal mentioned above. I hold that the A Party is bound by the decree of the Madras High Court in Ext. B-6 and he cannot be heard to say that he has still a right to agitate under section 147 Cr.P.C, in spite of the decree against him. 21. It is in evidence that even after the decree in Ext. B-6, the A Party filed an application before the District Collector for permitting him to take water from the river. This was done under the Malabar Irrigation Works (Prosecution and Levy of Cess) Act. These applications were rejected by the Collector by his orders, dated 10th December 1968, copy of which is Ext. B-3. This would also be a piece of evidence against A Party. This was done under the Malabar Irrigation Works (Prosecution and Levy of Cess) Act. These applications were rejected by the Collector by his orders, dated 10th December 1968, copy of which is Ext. B-3. This would also be a piece of evidence against A Party. If the District Collector had given him permission to take water from the river, A Party could have put forward a case that he has acquired a new legal right, as contemplated under section 147, for his relief from the Executive First Class Magistrate. 22. From the foregoing discussion, it is clear that A Party has failed to establish any legal right. 23. The learned counsel for the respondent contended that the revision is not maintainable inasmuch as the B Party did not question the preliminary order by means of a revision. According to him, the contention of the B Party is that the Magistrate had no jurisdiction to proceed under section 147 and, therefore, even the preliminary order passed by the Magistrate is without jurisdiction. In support of his contention, he invited my attention to a few decisions : The decisions are Hamir & Co. v. Suresh Chandra A.I.R. 1926 Patna 348, In re Khazi Mohammad Khan A.I.R. 1926 Madras 154, W. Gulap Singh v. M. N. K.O. Radha Devi A.I.R. 1964 Manipur 24 and Abdul Wahab Khan v. Mohammed Hamid Ullah A.I.R. 1951 Allahabad 238. In A.I.R. 1926 Madras 154, it is laid down that the High Court will not interfere in a finding of fact under section 147 in revision and as indicated by sub-section (4) the aggrieved party should seek his remedy in the civil court. With this statement of law, nobody has any dispute. What is sought to be revised in this revision is not a finding of fact. It is the jurisdiction of the Magistrate to proceed under section 147 that is in question and, therefore, that decision is not serviceable to the respondent. In A.I.R. 1928 Patna 349, it is laid down that : "The provisions of section 147 are of an emergency nature and are conducted more or less summarily. If the Magistrate, as the result of hearing the evidence, thinks that reasonable grounds have been shown to him that a bona fide claim of right exists, then he is justified in passing such order as he may think fit. If the Magistrate, as the result of hearing the evidence, thinks that reasonable grounds have been shown to him that a bona fide claim of right exists, then he is justified in passing such order as he may think fit. It is not expected that he should usurp the functions, of the Civil Court or that the enquiry under section 147 should be a formal trial of the matter in issue. The actual rights of the parties must await determination in a civil suit. The words ' such right exists ' must be understood to mean ' such right as is claimed '." With this statement of law also the petitioner before me has no dispute. What is contended is that the finding of the Magistrate is wrong inasmuch as the learned Magistrate has not considered the existence of a right in favour of the A Party. As I will presently show the Magistrate has proceeded on the footing that he can clutch at jurisdiction once it is proved that there is an imminent breach of the peace. If the A Party had established his claim to a right of user of water to overcome the finding of the Madras High Court in A.S. No. 715 of 1951 or the availability of any new right subsequent to that decree, things would have been different. But in this case, no such right is claimed or proved. 24. The next case cited by the learned counsel for the respondent is the decision reported in 1951 Allahabad 238. In that case it is observed : "In passing such orders, the Magistrates must, however, bear in mind that their jurisdiction under section 147 is confined only to preventing breach of the peace and they are not expected to hold complicated enquiries as to title and try to adjust the same. Their orders are intended to be only if a temporary nature till the rights of the parties are finally determined by competent courts." This case also does not assist the respondent. 25. In 1964 Manipur 24, it is laid down that the High Court will not interfere with an order passed by the Magistrate, if he has passed a well-considered and elaborate order. 25. In 1964 Manipur 24, it is laid down that the High Court will not interfere with an order passed by the Magistrate, if he has passed a well-considered and elaborate order. The Court said : "I find that the order of the Magistrate even though it is a summary proceeding is an elaborate and well-considered order in which he has dealt with the cases of both sides and dealt with the oral evidence and the documents in detail. The said finding of the Magistrate has also been upheld by the Sessions Judge and the Sessions Judge has also dealt with all the evidence in the case. Under such circumstances in a summary proceeding under section 147, Cr.P.C, the Court will not interfere on the question of fact. After all, the order is subject to the decision by a Civil Court and the petitioner could very well go to a Civil Court for a final adjudication of the question and hence I shall not go into this question of fact in revision. " 26. The learned counsel for the respondent brought to my notice the decision reported in Qamaruddin Hussain v. Mushtaq Ammad A.I.R. 1949 Allahabad 616. In that case while passing an order under section 147 (1) the City Magistrate directed the parties to appear before the Additional City Magistrate. He also directed the opposite party not to take possession of the property until he obtained an order of competent Civil Court. It was contended that the revision was incompetent inasmuch as the preliminary order was not made the subject matter of revision earlier. The court found that the original order passed by the Magistrate was irregular. In that case, it was held that a party could not challenge the earlier order which was admittedly wrong in a revision against the final order of the Additional City Magistrate. This case is not useful for the purpose of the points we are concerned with in this case. 27. These decisions lay down (1) that a High Court in revision will not interfere with the finding of fact arrived at by the Magistrate; (2) that the final adjudication of the rights between the parties is by a Civil Court and (3) that it is not necessary for the Magistrate to elaborately consider the question of title in section 147 proceedings. 28. 28. In the case on hand, what we have is a finding of a competent Civil Court declaring the right in favour of B Party as long ago as 1952 and the absence of any right in favour of A Party. The respondent before me was not able to establish a legal right either under Ext. B-6 or of any other law or by act of parties. This is of utmost importance in a proceeding under section 147. 29. Now coming to the order passed by the learned Magistrate, which is under attack, I am constrained to remark that the Magistrate has not appreciated the scope of section 147 and the jurisdiction that the said section confers on him. In paragraph 14 of his order, after stating that he has carefully perused the records and heard the arguments, he states: "Before discussing the evidence on record, I wish to emphasis the fact that the primary object of proceedings under section 147, Cr.P.C, is to prevent the breach of the peace and not to determine the rights of parties." This is a wrong approach under section 147. The question whether there is an imminent breach of the peace and whether it should be prevented should follow a finding that a party who moves the Magistrate under section 147 establishes a legal right in his favour. It is not in all cases where there is an imminent breach of the peace that section 147 Cr.P.C, can be invoked. If there is breach of the peace otherwise, it is for the police to interfere or for the Executive First Class Magistrate to exercise jurisdiction in appropriate proceedings. Section 147 contemplates interfere to avert an imminent breach of the peace only when the party who seeks the aid of Court establishes a legal right in his favour. If this is not made out, section 147 is not attracted. Either a legal right should exist in favour of the A Party or at least there should be a claim of bona fide right in his favour. Both being absent, the Magistrate's order cannot be upheld. 30. The interpretation placed by the Magistrate on the observations of the High Court also is not proper. Either a legal right should exist in favour of the A Party or at least there should be a claim of bona fide right in his favour. Both being absent, the Magistrate's order cannot be upheld. 30. The interpretation placed by the Magistrate on the observations of the High Court also is not proper. He has not given due weight to the observations by Their Lordships as to the right of A Party by declaring uneqivocally that A Party who was the first defendant before the Madras High Court has no right to take water from the river under any circumstances. 31. The learned Magistrate observes in paragraph 14, sub paragraph (vi), that the A Party has a right under section 7 (J) of the Easements Act, 1882 and as such he is entitled to the water from the river. In his view, therefore, the A Party was entitled to exercise this right without any restriction. This view based on section 7 (J) of the Easements Act is not correct. One looks in vain to the written statements filed by the A Party and to his petition before the Magistrate for any claim of right under the Easements Act. The right under the Easements Act is perhaps put forward for the first time when arguments were addressed before the Magistrate. Therefore, it is not correct to say that A Party has a right available under the Easements Act. Moreover, the point was not pressed by the learned counsel for the respondent before me. 32. I have gone through the evidence of witnesses on the side of the A Party and the B Party. I have considered the order passed by the Magistrate also in detail. I hold that in this case there is a complete absence of jurisdiction for the Magistrate to act under section 147 Cr. P.C. In the result, I allow this Criminal Revision Petition and set aside the order passed by the Executive First Class Magistrate under section 147 Cr. P.C., on 31st December 1971 in M.C. 2/71.