- (1.) This is a reference by the Addl. 'Sessions Judge of Aligarh, recommending that an order passed by the S.D.M. Khair and Iglas on 31-8-1963, rejecting an application under Section 147 Code of Criminal Procedure be quashed.
(2.) The proceedings under Section 147 Code of Criminal Procedure started in the court of the Magistrate on an application presented by Bohrey Param Sukh (Chairman of the Town Area of Chharra), complaining that Nawab Rahmat Ullah Khan (the proprietor of plot No. 251A) was constructing a boundary wall round the plot, so as to interfere with the rights of user exercised therein by the Hindu public of Ghharra and the local Kan-jars. It was alleged that for many years the Hindus had been burning Holi bonfires and holding Ramlila performances (including the burning of effigies of Rawan etc.) on this land, and that the Kanjars had been using the plot as a graveyard for members of their community. The Magistrate took evidence but came to the conclusion that the Petitioners witnesses were unreliable and vague, and that it had not been proved that the plot had been used for Holi and Ramlila lor 20 years or more, and further there was no evidence warranting the inference that Kanjars had ever been buried in the disputed plot. The application was accordingly rejected and the opposite party Nawab Rahmat Ullah Khan was allowed to go on with the construction of the boundary wall.
(3.) The Addl. Sessions Judge accepted the findings of fact arrived at by the Magistrate, but was of opinion that it was not necessary to determine whether the Hindus of Chharra had matured any easement or customary tight in the plot. According to the Sessions judge, it was sufficient if there was an "alleged right of user" which had been exercised for some time, and it was not necessary for the Magistrate to go into the question of whether a legal right had been matured or not.;