JUDGMENT
Kulwant Sahay, J.
1. This is a reference made by the District Magistrate of Gaya, recommending that the order passed under Section 147 of the Cr.P.C. by the Deputy Magistrate, directing the second party to desist from putting in earth on a weir, should be set aside. The reason upon which the learned District Magistrate recommends that the order should be set aside is that in the proceeding under Section 147 the second party was one Isher Singh who was the gomashta for the 9-annas Tikari Raj and the proprietor was not made a party. It appears that the first party, who is a proprietor of village Khaira, objected to the second party, the gomashta of the Tikari Raj, putting earth work on a certain weir which had the effect of diverting water into his own village Khaira with the apprehension of submerging the whole village. The learned District Magistrate is of opinion that the real party interested in the dispute is the proprietor, namely, the Maharaja of the 9-annas Tikari Raj, and that the Maharaja himself or his duly appointed mukhtear-am should have been made a party, and not the gomashta as it is possible that the gomashta might be dismissed or transferred to another place and the order would not be binding upon the Tikari Raj or any other gomashta when he comes in place of Isher Singh. He has referred to certain cases where it is held that the person really interested should be made a party in the dispute. There can be no doubt that it was desirable that the person really interested ought to have been made a party but I am not satisfied that the proceeding will be illegal or without jurisdiction because the gomashta, and not the proprietor, was made a party to the proceeding. The cases referred to by the District Magistrate have almost all been referred to in the Full Bench case of the Calcutta High Court in Dhondhai Singh v. Follet 31 C. 48 : 7 C.W.N. 825 where it was held by the Full Bench that there is jurisdiction under Section 145 of the Cr.P.C. to make an order in favour of a person who claims to be in possession of the disputed land as agent to, or the manager for the proprietors when the actual proprietors are not residents within the Appellate Jurisdiction of the High Court. In Bhola Nath Singh v. Wood 32 C. 287 a Division Bench of the Calcutta High Court distinctly held that the fact that the manager, and not his employer the zemindar, has been made a party to a proceeding under Section 145 of the Cr.P.C., is a mere irregularity, or at most an error of law which does not affect the Magistrate’s jurisdiction.
2. No doubt, under the amended provisions of the Cr.P.C., orders under Sections 145 and 147 can be revised by the High Court not only on the question of jurisdiction but also on the question of illegality, but I do not find any illegality in the Magistrate’s making the order under Section 147 against Isher Singh, who as gomashta filed the written statement on behalf of Tikari Raj and set up the claim of the Tikari Raj to put up earth work on the weir. The learned Vakil appearing for the petitioner is unable to cite any authority which would go against the decision in the cases reported as Dhondhai Singh v. Follett 31 C. 48 : 7 C.W.N. 825 and Bhola Nath Singh v. Wood 32 C. 287 referred to above.
3. I am unable to accept the recommendation of the learned District Magistrate. The order under Section 147 will, therefore, stand.