JUDGMENT
Dalal, J.
1. This is an application for revision from an order passed by a Magistrate in the Basti district under Section 137, Criminal P. C , directing that a certain bandh (a wall to prevent the flow of water) be removed. The Court adopted the correct procedure by issuing a notice against the applicants to remove the bandh within a certain time specified in the order, or to appear and show cause against the same. When the applicants appeared, they denied the existence of any public right in the opposite party under Section 139-A. The Magistrate thereupon recorded evidence. There was considerable reliable evidence in support of the denial of the right being a public right. The Magistrate, however, found that there was no such evidence and proceeded as laid down in Section 137, Criminal P. C. The applicants Munna Tewari and others have, therefore, come in revision to this Court because the Magistrate finally made the orders under Section 133 absolute under Section 137, Criminal P. C. For the sake of convenience the persons who desired the removal of the bandh may be called Chandrabali’s party, and the persons who built the bandh may be called Munna’s party. There is a very large jhil (expanse of water) on Chandrabali’s side in village Tal Bharanch alias Bakhra jhil. This village is on a higher level than the village of Ghurapali which belongs to Munna and others. The water flows down from the jhil by a channel to the river Rapti from village Tal Bharanch and village Ghurapali which adjoins Tal Bharanoh. Subsequently the water passes through several villages before it reaches the river Rapti. During the rains there is an expanse of water right up from the jhil to the Rapti, but in the dry season the water has to be prevented from flowing away, and Chandrabali’s party have by litigation acquired a right to build a bandh to preserve the water of the jhil during the dry season. Munna’s party of the Ghurapali village did the same during the spring, and collected water for their use in their village. In the winter and spring this year there had been rain so this stoppage of water threw the water back on to the village of Chandrabali, and it is alleged that it caused damage there. Chandrabali’s party claimed that Munna had no right to build the bandh which he did to stop the water flowing on the river Rapti, and that Chandrabali and his party have a right to prevent all the villages between their village and the Rapti from building a bandh, and thereby preventing the flow of water from Chandrabali’s jhil to the Rapti when Chandrabali has surplus water. This very statement of the case will show that Chandrabali claimed a private right, and not a public one. Both the subordinate Courts have relied on a single Judge case of this Court, Bharosa v. Emperor [1911] 34 All. 345, in holding that the right claimed by Chandrabali was a public right, because it affected a very large number of people.
2. In that case, however, the learned Judge observed that the case was on the border line. He made reference to Section 268, I.P.C., in which a public nuisance is defined as an act, or an illegal omission, which causes any common injury, danger or nuisance to the public, or to the people in general who dwell on or occupy property in the vicinity. The injury must be to the people in general, and not to particular people such as cultivators. In the present case the injury is not caused to people in general, whether they be cultivators or artizans, but only to a certain class of people who are agriculturists in the village of Chandrabali. As pointed out by a Bench of two Judges in In re Jaswatsangji Fatesangji [1898] 22 Bom. 988. by the Bombay High Court, not only the way, river or channel, where an unlawful obstruction is made, must be one of public use, but also the obstruction must be of that public use. In the present case the channel is not a public river, but one passing through particular villages, and of which the water is used by the agriculturists on both banks thereof. The obstruction in any way cannot be considered public, because only the villagers of Chandrabali’s village allege that they were injured thereby, and there is no complaint by the general public. In a case similar to the present a Bench of. this Court considered the law on the subject in some detail, and came to the conclusion that a field which is on a lower level than the adjoining fields and over which the surplus water of these adjoining fields used to flow into a tank, even if it be described as a channel, is not such a channel as had been or could lawfully be used by the public, and action cannot, be taken under Section 133, Criminal P.C., for the removal of any unlawful obstruction from it: Jagannath Sahu v. Parmeshar Narain [1914] 36 All. 209. In a Bench ruling., Abdul Wahid Khan v. Abdullah Khan A.I.R. 1924 All. 1, the majority of Judges out pf three were of opinion that the Magistrate has jurisdiction to take action under Section 133, Criminal P;. C., even where a bona fide claim of right is raised by the defendant, but when the question whether the right rested in the public is seriously, disputed, and its decision becomes a difficult matter of mixed fact and law, the proper procedure for a Magistrate to employ would be under Section 139-A (2) to stay proceedings until the matter of the existence of such right has been decided by a competent civil Court. In a case before me in Oudh I drew the attention of the Magistrate to the observations of Daniels, J., in another case that the existence of a genuine dispute as to title suitable for decision by the civil Court is a sufficient ground for not making an order absolute under Section 137, Criminal P.C. : Bhagwan Das v. Emperor A.I.R. 1923 Oudh 152.
3. It may be noticed that the provisions of Section 139-A were enacted in 1923 to give effect to a Bench ruling of the Calcutta High Court : Manipur. Dey v. Bidhu Bhusan Sarkar [1915] 42 Cal. 158. That case was a case of the obstruction of a, public way, and the decision was that if the Magistrate finds that the claim of the defendant is a bona fide one to the effect that the right is a private and not a public one, the Magistrate should stay his hand and refer the parties to the civil Court. In the present case there cannot be the slightest doubt that Munna’s party is laying a bona fide claim to a private right to raise a bandh “for the preservation of water to irrigate their own fields. In fact Mr. Iqbal Ahmad, who appeared for the opposite party, informed the Court that a suit for damages to the extent of Rs. 50,000 was being prepared for the damage caused to Chandrabali’s party by the bandh being put up. Obviously then the dispute is a private one between Munna’s party and Chandrabali’s party and should be decided by a civil Court. As pointed out in the Calcutta case and the case of this Court reported in Abdul Wahid Khan v. Abdullah Khan (4), the proper order for the Magistrate to pass was one under Section 139-A to stay proceedings until the matter of the existence of such right had been decided by a compatent civil Court. I set aside the order of Mr. Ram Bihari Sahi, Magistrate, dated 19th February 1928, under Section 137, Criminal P. C., and substitute in its place an order under Section 139-A that the proceedings be stayed until the matter of the existence of the right of Munna’s party to build the bandh has been decided by a competant civil Court.
