AGARWALA, J. - (1.) MOHAMMAD Hamiduallah made an appellant under Section 145, Criminal Procedure Code complaining that Abdul Wahab Khan was trying to close the door of his (Mohammad Hamidullah's) house opening into a lane as also a drain passing through the lane and joining the municipal drain by constructing a wall across the door. He alleged that he had been using the lane for passage through the door for the last 20 years and that the action of the opposite party was likely to cause a breach of the peace. The appln., though ostensibly made under Section 145, was in reality under Section 147, Criminal Procedure Code
(2.) THE Mag. issued notice to the opposite party who replied that he was the owner of the lane on which the appet. claimed a right of way. According to him, the applicant had opened the door in question a short time ago during his absence from Allahabad. He denied the existence of the drain and the right of way claimed by Mohammad Hamiduallah.
(3.) THE Mag. found that the open land had been used as a lane by the inmates of Mohammad Hamiduallah's house for several years past and that the opposite party had recently started the construction of the wall in front of the disputed door. He also found that there was a drain on the disputed land through which water of Hamiduallah's house flowed. He, therefore, held that the applicant had a right of way over the land through the door and also a right to flow water through the drain on the land into the municipal drain. He passed the following order : "I hereby order that the opposite party will remove the wall erected in front of the western door of the applicant within ten days of this order. It is hereby declared under Section 145/147, Criminal Procedure Code that the applicant has got a right to pass over the disputed land which has been attached from the western sidedoor to the main road. He has also got the right to keep his drain flowing from the disputed land up to the Municipal drain. The opposite party is forbidden to interfere with the exercise of these rights by the applicant on pain of prosecution under Section 188, Penal Code." Against this order the opposite party made an appellant in revision to the Ses. J., of Allahabad, who being of the opinion that Section 147, Criminal Procedure Code did not authorise a Mag. to pass a mandatory order directing the removal of a wall, made this reference, with the recommendation that the mandatory portion of the Mag.'s directions (ordering the applicant to demolish a wall) be quashed. The matter first came up before the Hon'ble the Chief Justice who, in view of the conflicting authorities upon the question, referred the case to a Bench which again in its turn considered that the case might be heard by a larger Bench. The reference is accordingly before us for disposal. Under Section 147, Criminal Procedure Code, when there is a dispute likely to cause a breach of the peace regarding any alleged right of user of any kind, whether easementary or otherwise, the Mag. is directed to make an inquiry into the dispute in the manner provided in Section 145 and if it appears to such Mag. that such right exists, he may make an order "prohibiting any interference with the exercise of such right.";