C. A. RAHIM, J. This application arises out of the order dated 4-1-1993 passed by the Sub-divisional Magistrate, Phulpur, district Allahabad initiating proceeding under Section 133, Crpc in Case No. 38 of 1993. 2. The fact is that an open land was purchased by the applicants which is situated to the south of the opposite parties house, which is a for storied one. The exhaust water of the said house used to run to the South and fall in the disputed land. The dispute started when the applicant erected a wall over the said land the allegation is that they blocked the passage of the dram by dumping earth on it. The local administration was approach ed who get it cleared and the said drain began to flow to the dispute. The opposite parties version is that as the applicants again tried to block the flow of the water hence an application was filed before the Sub-divisional Magistrate who after taking a report from the Tahsildar initiated proceeding under Section 133, Crpc. 3. The learned counsel for the applicants has submitted that the pro ceeding initiated against the applicants is not maintainable since no nuisance was committed. The Magistrate under the aforesaid see" act only if there is any illegal obstruction on public way, drain or chand The same has been challenged by the other side. It has been stated on behalf of the opposite parties that there is no out-let of the exhaust water of the house as there is sloping towards the south and for that reason the exhaust water used to run towards the south and fall in the disputed land, which was. 4. The question remains whether the offence committed by the applicants is public nuisance or not. Section 133 (1) (a) Crpc speak that any unlawful obstruction or nuisance should be removed from any public place or from any way, river of channel which is or may be lawfully used by the public. 5. In the decision reported in AIR 1958 MP Shaukat Husain v. Sheodayal Saksaina, it has been held that : "cuspate of the Code of Criminal Procedure deals with a public Nuisances and not with private nuisances. The remedy for the latter is a civil suit although that constitutes nuisance maybe common to both classes. 5. In the decision reported in AIR 1958 MP Shaukat Husain v. Sheodayal Saksaina, it has been held that : "cuspate of the Code of Criminal Procedure deals with a public Nuisances and not with private nuisances. The remedy for the latter is a civil suit although that constitutes nuisance maybe common to both classes. Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. In all other cases the party should be referred to the remedy under the ordinary law. The expression public nuisance has been defined |in Section 268 of the Penal Code as an act or illegal omission which ceases any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in vicinity. " 6. In Mis. Ghulam Kasool Riaz Ahmad v. State, 1978 Ail LJ 1288, it has been held that "proceedings under Section 133 are not intended to settle private disputes between poisons wishing to enforce private rights. They must go to the appropriate civil court for this purpose" 7. In the order by the learned Sub-divisional Magistrate dated 4-1-1993 it has been mentioned that It has been, therefore, stated that such effort caused apprehension of the peace. In the petition of complaint and also in the report of the Tehsildar dated 3-1-1993 it has been mentioned that the exhaust water of the complai nants house (opposite parties before me) used to flow through the disputed land. 8. At the conclusion, the Tahsildar has prayed that a direction be made to the incharge of Jhusi Police Chowki that the Nali which runs from the house of Raj Nath and leading to the land of Suresh Chandra Agarwal should not be blocked by him. From the petition of complaint it appears that though there are several houses around the vicinity the exhaust water of the house of Raj Nath only used to pass through that drain and fall in the disputed land which was blocked by the applicants previously and after it was cleared by the local administration, the applicants were trying to block that passage for which the proceeding was initiated. 9. 9. In the case of 1982 ACC 338- Pratap State of U. P. , it has been observed that some land was lying open towards north of the house of oppo site party and so persons began to pass and re-pass on this land. Obviously such user of open land could not amount to public way. The best criterion to see whether it is a public way is whether it is vested in an unascertainable number of persons so as to make them a community or class In that casa the allegation was that some persons of the locality used to pass though the open land and the same was objected. Even in that case too the court held that no pro secution under Section 133, Crpc could be initiated. In the instant case there Is no allegation that the exhaust water of some other persons of the locality also used to pass through that drain. There appears to be an infringement of private right of opposite party No. 1. It might be that he was enjoying the same for a long time or the disputed public drain lying open prior to the pur chase of the applicants but that does not create any public right over that property for which any proceeding under Section 133, Crpc is called for. The learned Magistrate erred in taking that view of the matter and he equated private right with public right. Utilization of a piece of land by private per sons would not allow him to create any right on that land for which action under Section 133, Crpc can be invoked only on the ground that there was apprehension of breach of the peace. Considering the circumstance I find that the proceeding cannot stand in the eye of law. 9. The application is, therefore, allowed. The order dated 4-1-1993 passed by the Sub-Divisional Magistrate, Phulpur, District Allahabad is hereby quashed. Revision allowed. .