M.N.M. Chelliah Pillai Vs. Ramiah thevar Alias Ramalinga thevar and ors. - Court Judgment

Excerpt:

- - he clearly should have acted under section 147, which deals with disputes with regard to easements :that section does not make any provision for action to be taken in case the magistrate is unable to decide between the parties. as he was not satisfied that either section 147(2) or section 147 (3) applied, he was unable to pass an order either prohibiting interference or prohibiting the exercise of the alleged right :nor could he pass an order attaching the land; the order of the magistrate is, therefore, clearly wrong and must be set aside......make an order prohibiting any exercise of the alleged right. as he was not satisfied that either section 147(2) or section 147 (3) applied, he was unable to pass an order either prohibiting interference or prohibiting the exercise of the alleged right : nor could he pass an order attaching the land; for such an order can only be passed where there is a dispute with regard to immovable property that can be dealt with under sections 145 and 146 criminal procedure code. the order of the magistrate is, therefore, clearly wrong and must be set aside.3. it has been suggested by the learned counsel for the fifth counter-petitioner that the magistrate should be directed to give a definite finding one way or the other; but a definite finding where the evidence is conflicting may not be possible. the petition is, therefore, allowed and the order of the lower court set aside.

Judgment:

ORDER

Horwill, J.

1. The question in dispute before the Magistrate was whether a right existed in the counter-petitioners to take rain water from the field of the petitioner through the bund separating the petitioner's field from the counter-petitioners' field.

2. The learned Magistrate purported to make an enquiry under Section 145 Criminal Procedure Code and passed an order under Section 146(1) ordering attachment by the Court because he was unable to decide whether such right existed or not. He clearly should have acted under Section 147, which deals with disputes with regard to easements : that section does not make any provision for action to be taken in case the Magistrate is unable to decide between the parties. If it appears to the Magistrate that such a right exists, he may issue an order prohibiting interference with the exercise of the rights; on the other hand, if it appears to the Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right. As he was not satisfied that either Section 147(2) or Section 147 (3) applied, he was unable to pass an order either prohibiting interference or prohibiting the exercise of the alleged right : nor could he pass an order attaching the land; for such an order can only be passed where there is a dispute with regard to immovable property that can be dealt with under Sections 145 and 146 Criminal Procedure Code. The order of the Magistrate is, therefore, clearly wrong and must be set aside.

3. It has been suggested by the learned Counsel for the fifth counter-petitioner that the Magistrate should be directed to give a definite finding one way or the other; but a definite finding where the evidence is conflicting may not be possible. The petition is, therefore, allowed and the order of the lower Court set aside.