Decided on September 14,1970

Srinivasa Perumal and Ors Appellant
Sellapapammal Respondents


- (1.) This revision by the unsuccessful party in a proceeding under Section 145, Criminal Procedure Code, is directed against the orders passed hy the Additional First Glass Magistrate, Kulitalai, in M.G. No. 166 of 1969 on his file. The dispute related to the right to take water from a well in S.F. No. 124/7 situate at Chitlarai, a village, Musiri Taluk, in Trichy District. The eastern portion in this survey field is owned by the respondent. The western portion belongs to the petitioners and there is no dispute that both are entitled to take water from this well to their respective portions by turns. The petitioners claimed a right to take the watei for another field viz., Section No. 124/3, which they had taken on lease from someone else. Disputes arose. There was likelihood of the breach of the peace. The Revenue Divisional Officer at Musiri issued the pieliminary order under Section 145(1) of the Criminal Procedme Code, on the 17th of March, 1969. By this order, he directed both the parties to file affidavits and documents in proof of their possession. Eventually he transmitted the papers to the District Magistrate, Tiruchirapalli for adjudication. The case was finally disposed of by the Additional I Class Magistrate, Kulitalai and he by his order dated 20th November, 1969, restrained the present petitioners from taking water from this well to his land viz., Section No. 124/3. The correctness of this order is now canvassed in this revision.
(2.) The dispute in this case relates to the right to take water from the well and as such it falls within the ambit of Section 147, Criminal Procedure Code. The right to take water from a well is not a right to possession of the land, but it is only a right to use it, and the matter shuld have been dealt with only under Section 147 and not under Section 145 of the Code. Vide Sankara Kailasa Mudali v. Kuthalinga Mudali,1919 AIR(Mad) 812. There is an essential distinction between Section 145 and Section 147. The former concerns with the dispute relating to possession and the Magistiatte is concerned, or with actual possestion of the property at the relevant point of time and against thej apprehension about the breach cf 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. The procedure to be followed in a proceeding under Section 147, as amended in 1955, differs from the procedure which should be followed in proceedings under Section 145. Sub-section (1) of Section 145 states that the question of possession shall be decided with reference to' documents and affidavits. Under Sub-section (1-A) of Section 147, the Magistrate shall peruse the statements put in by the parties, hear them, receive all suck evidence as may be produced by the respectively, consider the effect of such evidence take such further evidence, if necessaiy, as he thinks necessary, and, if possible, decide whether such right exists, and the provision of Section 145 shall, as far as may be, be applicable in the case of such enquiry. The learned Magistrate has not followed the procedure prescribed in the section and he has not recorded any evidence in the matter. On this ground alone, the order has to be quashed.
(3.) On behalf of the respondent, it is urged that the petitioners had not challenged the procedure at the time of the proceedings and that now they cannot be heard to complain, taking advantage of the defect in procedure. The preliminary order itself has been drawn only under Section 145(1) of the Code. The matter involves only a right to take water and not a right relating to possession of the land. Therefore in these circumstances, this omission cannot be regarded as a mere irregularity which could be cured.;

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