Judgment 1. This application by the sole petitioner under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) is directed against order dated 4th of October, 1969 passed by Shri M. Pandey, Magistrate, first class, in a proceeding under Sec.147 of the Code. In the said proceeding the petitioner was the sole member of the second party whereas the opposite party were the members of the first party. The dispute related to a right of passage over a piece of land measuring 2« kathas of land comprised in plot No. 687, Khata No. 241, situated in village Gobardhanpur, police station Dehri, district Shahabad. The proceeding was initially started under Sec.144 of the Code which was later converted into one under Sec.147 of the Code. 2. According to the petitioners case (sic), the disputed land was used as right of passage since time immemorial whereas according to the opposite party the disputed land was their khas land on which no right of passage existed. According to the opposite party, the petitioner had alternative right of passage. In order to substantiate their respective cases, on behalf of the petitioner six witnesses were examined and on behalf of the opposite party seven witnesses were examined," apart from the documentary evidence filed by both parties. The learned Magistrate held local inspection and a pleader commissioner was also appointed for local inspection and report. The learned, Magistrate after considering the evidence on record held :- "On the basis of the evidence, report of the pleader commissioner, documents-filed and my own local inspection as discussed above I hold that the 1st party has proved his right of user through the disputed passage. The 2nd party on the other hand has failed to prove his contention of exclusive possession over the same." 3. The 2nd party on the other hand has failed to prove his contention of exclusive possession over the same." 3. Learned counsel for the petitioner has assailed the impugned order and contended that the learned Magistrate has erred in overlooking the mandatory provisions contained under proviso to Sub-Section (2) of Sec.147 of the Code which reads :- "Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution." Learned counsel for the petitioner has placed before me the entire order in order to show that nowhere he has given such a finding. Learned counsel for the opposite party, however, submitted that the witnesses examined on behalf of the opposite party have stated that the disputed land was used as a right of passage from time immemorial and according to counsel for the opposite party that should be considered as sufficient compliance to the said proviso to Sub-Section (2) of Sec.147 of the Code. Learned counsel for the opposite party also examined the deposition of those witnesses but nowhere they have stated as to when the obstruction was caused by the petitioner, i.e., the second party. Learned counsel for the petitioner, on the contrary, pleaded that the proviso to the said section is mandatory and it requires specific compliance by the Court. In order to substantiate his contention he relied on a Judgement of this Court in Trijogi Narayan Singh V/s. Kamta Prasad, AIR 1955 Pat 265 : (1955 Cri LJ 977) where Banerjee, J. while dealing with the provision of Sec.147(2), proviso, observed that an order under Sec.147 of the Code is without jurisdiction if it is made in the absence of any finding that the right was exercised within three months anterior to the enquiry. He also referred to the decision in Jang Bahadur Pandey V/s. Bindeshwari Pandey, 1964 BLJR 290 where Kamla Sahai, J. observed that order prohibiting an interference with exercise of right contemplated under Sec.147 of the Code could not be passed unless such right was exercised within three months next before institution of enquiry, Learned counsel also drew my attention to another judgement of this Court in Ram Chandra Prasad V/s. Khokha Sao, 1969 Pat LJR 470 where G.N. Prasad, J. in paragraph 10 at page 474 observed that it would be immediately noticed that the learned Magistrate had recorded no finding at all in the terms of the proviso to Sec.147(2) and on that ground alone the order of the learned Magistrate must be set aside. Lastly, he referred to a recent Judgement of this Court in Bhola Mahaton V/s. Bhattu Baitha, AIR 1970 Pat 320 : (1970 Cri LJ 1250) where Untwalia, J. (now C.J.) in paragraph 4 at page 321 held : "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..........................." His Lordship has relied on various decisions including Grant V/s. Padarth Jha, AIR 1921 Pat 486 : (22 Cri LJ 463) and Sirkawal Singh V/s. Bhuja Singh, AIR 1924 Pat 784. 4 On the basis of those observations learned counsel for the petitioner-submitted that there are series of cases on the point and now the law is well settled that the Magistrate must give a finding. If there is no such finding the order cannot be sustained. 5. On the other hand, learned counsel for the opposite party drew my attention to a Bench decision of this Court in Chaturgun Turha V/s. Jamadar Mian. AIR 1961 Pat 374 : (1961 (2) Cri LJ 374) where U.N. Sinha and G.N. Prasad, JJ. had the occasion to deal with" the provisions contained under Sec. 147(2), proviso. U.N. Sinha, J. who delivered the judgement for the Court observed" in paragraph 6 at page 376 :- "There is no doubt whatsoever that the settled view of this Court is, that in the case where the right claimed is exercisable at all times of the year, an order will be without jurisdiction unless it is. U.N. Sinha, J. who delivered the judgement for the Court observed" in paragraph 6 at page 376 :- "There is no doubt whatsoever that the settled view of this Court is, that in the case where the right claimed is exercisable at all times of the year, an order will be without jurisdiction unless it is. based upon a finding that the right claimed has been exercised within three months next before the institution of the enquiry. I will, therefore, consider the question whether the learned Magistrate, in the instant case, has based his decision upon a finding that the right claimed by the first party had been exercised within three months next before the institution of the enquiry. I will quote the following observations of the learned Magistrate : (a) Case of the first party in brief is that the drain water of his old residential house at village Mahadeva P.S. Siwan used to flow towards north in the land of the 2nd party since time immemorial. On 28-10-1956 they erected a bundh in their land in spite of protest of the 1st party due to which the flow of water was completely stopped, thereby causing danger to the home. (b) It is, therefore, obvious that according to the case of the 1st party his drain water must have been flowing through the space lying in between the houses of Satnarain and the 2nd party and ultimately falling in the latters land. (c) Chaturgun Turha says that there is accumulation of drain water at the base of the bund. This is indication of the fact that this bund has caused obstruction to the usual flow of water. It is said by Patia Mistri (O.W. 2) that drain water of Jamadar Mian will fall in the land of Chaturgun if the bund is cut at that point (d) They have all said that the house of the 1st party is in existence since long. and the drain water is flowing on the north in the land of the 2nd party since time immemorial. (e) As regards construction of bund it is stated by Jamadar Mian that it took place in the morning of 28-10-1956. and the drain water is flowing on the north in the land of the 2nd party since time immemorial. (e) As regards construction of bund it is stated by Jamadar Mian that it took place in the morning of 28-10-1956. The 2nd party was in an aggressive mood when he raised protest * * * * *" On the basis of the above observation learned counsel for the opposite, party submitted that it is not necessary to give a specific finding by the Magistrate. This Court can also examine the record of the case in order to find as to whether the Magistrate has sufficiently complied with the provisions contained in the said proviso. 6 No doubt, this Court has power to do so in revisional jurisdiction. In fact I directed the counsel for the opposite party to read the evidence of the witnesses examined on behalf of the opposite party as well as to place before me the record of the case to show as to whether there was any evidence on the record suggesting the date when the obstruction was caused on the passage by the second party, namely, the petitioner. But as, mentioned above, learned counsel for the opposite party could not point out evidence of any witness to show as to when the obstruction was caused. Therefore, in my opinion, on the facts, in the circumstances and on the evidence on record of the present case the said observation of their Lordships would not in any way assist the contention advanced on behalf of the opposite party. It may be seen that in the observation which I have quoted above, there was a specific date of obstruction, i.e., 28-10-1956. In the present case there is complete absence of that. 7. After a careful consideration, therefore, in my view the contention of learned counsel for the petitioner prevails and the impugned order cannot be sustained. In the result, the application is allowed, the order is set aside and the case is remitted to the Magistrate to give a specific finding in accordance with the proviso to Sub-Section (2) of Sec.147 of the Code and in the light of discussions made above. For that reason he will give opportunity to lead evidence to the parties. For other findings he would not allow the other parties to lead fresh evidence. For that reason he will give opportunity to lead evidence to the parties. For other findings he would not allow the other parties to lead fresh evidence. He will base his other findings on the evidence already on record.