Judgment B. N. Sinha, J. 1. This application in revision is directed against order dated 7-2-1983 passed by Sri V. C. Prasad, learned Executive Magistrate, Masaurhi (Patna) in a proceeding (T. R. S. No.7/83) Babu Lal Singh V/s. Bhagwan Singh. Under Sec.147 of the Code of Criminal Procedure (hereinafter to be referred to as the Code ). The petitioners were the 2nd party and the opposite party No.1 and his brother Sukan Singh were the 1st party in that proceeding. 2. The fact of the case leading to the proceeding under Sec.147 of the code are that opposite party No.1 Babu Lal Singh along with his brother Sukan singh filed a petition on 21-11-1979 before the Sub-divisional Magistrate, Sadar, patna stating therein that there was a public Rasta 6 feet wide at village makhdumpur Narha, P. S Dhanaura, district Patna lying between S. P. No.703 and 704 to its north and S. P. No.705 to its south and the members of the 2nd party were planning to obstruct the same by constructing a wall thereon and thereby encroaching the road to the extent of 3 feet and there was apprehen-sion of breach of peace on that account and that the police had already been informed regarding it on 15-11-1979. 3. The learned Sub-Divisional Magistrate, Patna on receipt of this petition referred it to the local police for enquiry and report and also directed the 2nd party (petitioners) to show cause. The 2nd party petitioners) showed cause and the report from the police was also received, on hearing the learned counsel for both the parties and on perusing the police report and the cause shows by the 2nd party, the learned Sub-Divisional Magistrate, by his order dated 12-2-1980 drew a proceeding under Sec.147 of the Code as he was satisfied that a dispute existed between the members of the 1st party on the one hand and the members of the 2nd party on the other regarding the right of user of the Rasta running east to west between S. R. Nos.703 and 704 to its north and S. P. No.705 to its south and he directed both the parties to put in written statement of their respective claims. Subsequently, the proceeding was amended at the instance of the 2nd party (petitioners) as the learned Sub-Divisional Magistrate, patna was satisfied that BUtm\mpxeime\vlb breach of the peace between the members fuand9 Hbparty on fh$t)ndf)M9au)d. the members of the 2nd party on the other jjs3p|jij69 there was disputeiikcl the obstruction of discharge of Nali water. used to be discharged through a lane lying in between thenouses of both the parties bearing plot Nos.703, 638 and 639 to the east and plot Nos.669 and 670 to the west which had been obstructed by the 1st party by constructing a Pucca-Nali in the said lane in front of their house bearing plot No.670 for the flow of the Nali water of their houses by blocking the Nali of the 2nd party from flowing further to the south and then to the east in the lane in between plot Nos.703 and 704 to the north and 705 to the south situated in village Makhdumpur Narha, P. S. Dhanapura district Patna. Both the parties filed their written statements regarding their respective claims. The facts mentioned in the written statements need not be mentioned for disposal of this application. 4. During the enquiry, the 1st party examined 5 witnesses and the 2nd party examined 4 witnesses and they also got some papers exhibited on their behalf. The learned Magistrate, taking into consideration the evidences produced by the parties found that the 2nd party had obstructed six feet wide Jane between S. P. Nos.703 and 704 to its north and S. P. No.705 to its south by constructing a brick wall and thereby obstructing the right of user of the 1st party and others and he directed the 2nd party to immediately remove the obstruction so that the 1st party and others may use it as they have been using since after 1960 and he further ordered that the 2nd party will have no connection with the lane between S. P. Nos.669 and 670 on the one side and 703 on the other. 5. 5. On perusal of the impugned order, I find that there is no specific finding by the learned Magistrate if the 1st party and others had right of user on six feet wide lane running from west to east lying between S. P. Nos.703 and 704 on its north and S. P. Nos.705 on its south and that such right still exists and such right has been exercised within 3 months next before the receipt of the information leading to the institution of the present enquiry. Thus, the learned Magistrate has contravened the mandatory provision of sub-section (3) and its proviso to Sec.147 of the Code. Hence, the impugned order cannot be sustained. 6. I accordingly allow this application and set aside the impugned order. The proceeding is being remanded to the learned Magistrate for deciding it according to the provisions of Sec.147 of the Code. Revision allowed.