Judgment Radha Mohan Prasad, J. 1. This revision-application is directed against, the order dated 1.8.91 passed by the 4th additional Sessions Judge, Santhal parganas, Dumka in Cr. Revision No.68/83 setting aside and reversing the order dated 9-2-83 passed by the executive Magistrate, Rajmahal, in Cr. Misc. Case No.178 of 1979. 2. The dispute in this case relates to 12 dhurs of land contiguous east of the house of the first party-petitioner over plot No.127, the total area of which is 10 katha 6 dhurs. In short, the case of the petitioner, who was first party in the court below is that his residential house is situated on plot nos.216 and 218 of village Maina talab facing towards west and the means of egress and ingress to his house is through a portion of the plot in question, which has been in their use since time immemorial and it is through this passage that the villagers go to their houses. It is alleged that the second party members, namely, O. P. No.2 forcibely wasted to close the said rasia by putting a tati which led to filing of an application under Section 147 of the Code of Criminal Procedure (hereinafter referred to as the Code)before the Subdivisional Magistrate, rajmahal, whereupon a report from the local circle officer was called for. The Circle Officer reported that a tati has been put by the second party in front of the house of the petitioner and thereby aforementioned passages was blocked. On consideration of the said report a proceeding under Sec.147 of the Code was drawn up and both parties were directed to file their show cause. According to the petitioner, he filed his show cause wherein he contended that he has been using the said katha of land by way of rasta for villagers since long time and the obstruction by the second party is mala fide causing inconvenience to them. The second party, namely, Opposite party no.2 also filed his show cause, in which so claimed to be the owner of the disputed land on the basis of a soda sale deed, executed some time in the year 1934. Ultimately, both the parties led their evidence and the petitioners examined 6 witnesses and the opposite party No.2 examined 4 witnesses besides filing of documents in support of their respective claims. 3. Ultimately, both the parties led their evidence and the petitioners examined 6 witnesses and the opposite party No.2 examined 4 witnesses besides filing of documents in support of their respective claims. 3. The trial court, on consideration of the evidence and in exercise of power under Sec.147 (3) of the code directed the opposite party No.2 to remove the obstruction from the land in question and also not to use the said land for his own purpose only. 4. Being aggrieved by the said judgment opposite party No.2 filed revision in the court of the District and sessions Judge, Dumka, which was numbered as Cr. Revision No.68/69. The said regulation was finally heard by the 4th Additional Sessions Judge, dumka, who by the impugned order allowed the revision and set aside the order of the trial court, inter alia on consideration that if the passage was constructed within three months, it must be proved by oral evidence as well as by the document, if any. Besides this, he on scrutiny of entire evidence found that they do not disclose that there was any passage of 12 dhur is the area of plot No.127. We, however, also found that the entire 2 katha of land is in possession of the opposite party. 5. Learned Counsel for the petitioners made various contentions mailing the impugned orders in regard to the finding by the revisional court that if the passage was obstructed within three months, it must be proved by oral evidence as well as by document, the learued Counsel submitted that as the proceeding was initiated under Sec.147 of the Code, the presumption in law would be that the said initiation by. . the learned magistrate was after satisfying all the requirements under Sec.147 of the code. Moreover, according to the learned counsel, no such objection was ever raised by the opposite Party No.2 and, thus, no evidence in that regard was warranted. However, the learned counsel for the petitioner could not refer to any finding in the order of the trial court that the right claimed by the petitioner was exercised within three months next before the receipt of the report under Sec.147 (1) of the code. However, the learned counsel for the petitioner could not refer to any finding in the order of the trial court that the right claimed by the petitioner was exercised within three months next before the receipt of the report under Sec.147 (1) of the code. Sec.147 (3) of the Code empowers the Magistrate to pass an order prohibiting any interference with the exercise of such right, including in a proper case for passing an order for the removal of any obstruction in the exercise of any such right, provided that such right is exercisable at all times of the year and unless it has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the enquiry. No such order can be passed by the Magistrate unless the aforesaid requirement is fulfilled or where the right is exercisable only at a particular occasion or on particular occasion and unless the right has been exercised during the last of such reasons or on the last of such occasions before such receipt. 6. This Court in the case of Binoga yadav and others V/s. The State of Bihar and others, the decision of which is reported in 1984 P. L. J. R.629, held that the dispute involved in a proceeding initiated under Sec.147 of the Code is the right of user either by easement or otherwise and when such a right is itself, either in exercise of such right or in denial gives rise to the dispute making out an apprehension of the breach of the peace, a proceeding under Sec.147 of the Code is warranted and thus, it may also be termed to be a preventive measure for avoiding any occasion of apprehension of the breach of the peace. Considering the entire scope of Sec.147 it was held by the Court that proviso to sub-section (3) of Sec.147 of the Code is of mandatory nature and in absence of any finding whatsoever in that will strike at the root of the jurisdiction for passing a valid and legal order under section 147 of the Code, and simply a finding that opposite party No.2 had a right of user is not sufficient in itself from the legal validity point of view, unless there is a finding regarding the period of user as contemplated under the proviso to sub-section (3) of Sec.147 of the Code. 7. In the instant case the learned counsel for the petitioners has not been able to refer to any finding in the order of the learned Magistrate that such right of user was exercised by the petitioner within three months next from the receipt under sub- section (1)of a report of the police officer or other information leading to the institution of the enquiry. He however, tried to place reliance on the statement made in paragraph 8 of the revision-application, wherein it is contended that at no point of time, the second party raised any contention regarding non-maintainability of the proceeding unde,r section 147 of the Code. Neither he contended that the proceeding is vague inasmuch as it was explicit and clear to both the parties as to regarding which area the litigation is going on, nor on the point of limitation, because the proceeding had been initiated within three months of the construction made by the second party in the right of the first party in exercise of the disputed land as their passage. Such statement in the revision-application before this court will not a sufficient to comply with the requirement of sub-section (3)and its proviso to Sec.147 of the code. In paragraph 3 of the revision-application where he has narrated the case of the petitioner no such fact has been stated that in the petition filed before the Magistrate it was alleged that the right of user of the rasta over the plot in question was exercised by the petitioner within three months next before the receipt under sub-section (1)of the information by way of petition filed before the Magistrate. 8. 8. In absence of specific case of the petitioner in regard to the above, and in regard to the above specific finding of the-Court, below, I am unable to hold that the requirement of Section 147 of the Code was fulfilled and warranted action by the learned Magistrate made the said revision. However, in the facts and circumstances, I find that the learned Additional Sessions Judge also committed error in deciding the claim of the respective parties on merit and particularly in holding that the entire rasta of land are in possession of the opposite party for recording such a finding he has not even relied upon any material, 9. This, revision-application is accordingly disposed of with an observation that the parties will be at liberty to agitate their claim on merit in regard to the dispute in question, if still exists in an appropriate fresh proceeding. In the facts and circumstances, there shall be no order as to costs. Order Accordingly.