Heta Singh and others vs Emperor

Agarwala, J.—The petitioners are residents of village Khairwan. The prosecution party are residents of village Silway. In August last year the residents of Silway put up an embankment in plot No. 1556 in village Silway for the purpose of retaining water in their own village. The residents of Khairwan claimed that they are entitled to surplus water which enters plot No. 1556 for the purpose of irrigation of their own fields. The dispute as to the rights of the parties led to a disturbance which resulted in trials of the villagers of Khairwan and Silway on charges of rioting and other offences. In the case against the Silway people the defence filed Fard-ab-pashis of both the villages. Mainly on a consideration of that evidence the learned Magistrate who was trying the case came to the conclusion that the people of Silway had no right to erect the bundh. In the result the villagers of Silway were convicted. In the case against the residents of Khairwan, there were no Fard-ab-pashi papers on the record, but the learned Magistrate referred to the Fard-ab-pashis which were filed in the counter-case and he held that the people of Silway had no right to erect the embankment, but that the inhabitants of Khairwan had exceeded the right of private defence in assaulting the Silway people. In the result he convicted the inhabitants of Khairwan also.

Each party preferred an appeal to the Sessions Judge of Monghyr. In dealing with the appeal by the residents of Silway, the learned Sessions Judge, on a consideration mainly of the Fard-ab-pashi papers, came to the conclusion that the inhabitants of Silway had a right to erect the bundh in question for the purpose of retaining water in their own village until they had finished with it. He therefore acquitted the Silway people. In the appeal by the people of Khairwan the learned Sessions Judge reversed the finding of the learned Magistrate with regard to the right of irrigation. He has not however discussed the evidence in the case, but has referred to his finding in the appeal by the people of Silway. Convenient as that course may have been for the learned. Sessions Judge to adopt in dealing with the two appeals in counter-cases, it raises a difficulty when the case comes before us in revision, for there are no materials to enable as to satisfy ourselves that the learned Judge was justified in reversing the decision of the trial Court on the question of fact. Those material are not before us now and we are not therefore in a position to decide the main question which arises in this application, namely the rights of the parties in regard to the irrigation of the two villages.

The order of the learned Sessions Judge must therefore be set aside and the appeal remanded to him to be disposed of in accordance with law. The learned Sessions Judge will consider the desirability of marking as exhibits in the present appeal the two Fard-ab-pashis, and the map which is Ex. 2 in the Silway case, and which are public documents.

Luby, J.

I agree.