Bandh Rai and others vs T.B. Norman

Ross, J.—This is an application against the order of the Sub-Divisional Magistrate of Motihari made in favour of the opposite party under S. 147 of the Criminal Procedure Code in respect of a right to fish in water lying over the occupancy holdings of the petitioners in village Bathnah.

The contention on behalf of the petitioners is that the order is without jurisdiction inasmuch as an order can only be made under S. 147, if it appears to the Magistrate that the right to the use of land or water exists, and that in the present case the Magistrate has taken an erroneous view of the law on the subject. He has held that the opposite party is in possession of this right, although he had no such right in law and consequently no order can be made under S. 147. Reference is made to the decision of Mullick, J., in the case of Messrs. Henry Hill and Co. v. Sheoraj Rai Letters Patent No. 7 of 1921. Now the law on the subject is certainly mis-stated in the judgment of the Magistrate. But this in itself does cot entitle this Court to interfere if there was jurisdiction to make the order. In para 5 of the judgment there is a finding that from 1310 onwards the right to fish in the tank as well as in the Chaur of Bethnah village has been annually leased to a thikadar by the opposite party and up to the current year the possession of the disputed use of water for fishing purposes in the village has been shown to be in favour of the landlord. This amounts to a finding that the opposite party has acquired the right to fish over these lands by prescription. It is urged that on the written statement of the opposite party so such finding was open to the Magistrate. It is truck that throughout the written statement there is the same misapprehension of the law as in the Magistrate''s own judgment : but in the last there is an allegation that the right is the sole right of the Pipra concern, who have been exercising and enjoying it ever since the grant of the mokarari right to them by the Bettiah Raj, although this is not a pleading of an acquisition of the right by adverse possession, it is sufficient to let in evidence on which that finding has been arrived at. The application is dismissed.