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Calcutta High Court
Srimanta Bera vs Indra Narayan Prodhan And Anr. on 17 April, 1909
Equivalent citations: 3 Ind Cas 468
Bench: Caspersz, Ryves


JUDGMENT

1. The order complained of runs thus: Srimanta Bera claims a prescriptive right to pass the water of his tank over the paddy land on the south. He has entirely failed to prove exercise of the right uninterruptedly for twenty years. His claim is, therefore, disallowed.”

2. The Code of Criminal Procedure provides that, in passing this class of order (section 147), the Court should adopt the Form No. 24 in Schedule V of the Code. There is no such order in the present case, and it is not a little difficult to understand what is the meaning of the order actually passed.

3. The petitioner who obtained this Rule contends, through his learned Vakil, that the Magistrate declined jurisdiction, and urges that Section 147 is not confined to cases of easement acquired by uninterrupted enjoyment for twenty years as provided by Section 26 of the Limitation Act. This contention derives support from the proviso to Section 147 which contemplates an exercise of the right, whatever that right may be, within three months from the date of the order. Such a right is certainly of a more elastic description than the right which has to be strictly proved, in terms of Section 26 of the Statute, in a Civil Court.

4. We must, therefore, make this rule absolute and send back the case in order to afford an opportunity to the Magistrate to go into the matter in the light of the observations we have made. We are not at present prepared to say that he has declined jurisdiction; but it certainly appears that he has not decided the case one way or the other. His judgment is so scanty that it is impossible to say what the Magistrate really intended to decide.

5. Let the papers be returned to the Magistrate to conclude his enquiry and to pass orders upon the respective claims of the parties.

6. The rule is made absolute in the manner indicated. The Magistrate will be at liberty to pass any order regarding the costs with regard to the entire proceedings.


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