Ross, J.This is a reference by the, learned Sessions Judge of Gaya in the matter of an order passed by the Sub-Divisional Officer u/s 147, Criminal P.C. It appears that both the first and second parties to these proceedings are proprietors of different takhtas in mauza Lodhwe. In the takhta of the second party is an ahar known as Laraiya Ahar and in the takhta of the first party is an ahar known as Pokhar Ahar. The water comes through a pyne from the south and flows into Laraiya Ahar. The excess water was discharged through a donga and flowed by a channel towards the north into the Pokhar Ahar.

2. There was a litigation about this water with the result that it was decided by a compromise in the High Court that an embankment should be raised to the height of 97.83 at the point where the donga was and that any excess water flowing over this embankment should go to the Pokhar Ahar. The incidents which gave rise to these proceedings were the cutting of the western side of the pyne at a point south of this donga and the connexion of the pyne at this cutting with the northern channel of the first party. The result of this connexion was that not only was the water flowing from the south diverted from the Laraiya Ahar to the Pokhar Ahar, but even the water that was in Laraiya Ahar flowed back through the cutting in the embankment and was discharged to wards the north. In this state of things the Magistrate took proceedings u/s 147 which appear to have related not only to this dispute at the point which is marked as A-3 in the survey map, but also to a dispute at point A much further south where the state of things existing at the time of the High Court decree is said to have changed by the cutting of a straight pyne connecting the two branches which formerly existed. The order which the Magistrate passed was a prohibitory order against both parties restraining them from exercising their alleged rights in this water. The consequence of that is that the first party have gained their object. They get all the water and the second party has to go to the civil Court.

3. The learned Judge has referred this case recommending that the prohibitory order be confined to the first party and that they be further restrained from hindering the second party in closing the cutting in the western bank of the pyne.

4. The learned Government Advocate supports the Magistrates order on two grounds. He says that the case of the first party was that the arrangement settled by the compromise in the High Court had been altered by a subsequent agreement and that although the Magistrate has found that this agreement is not established yet he has not given effect to that finding because the decision has been confined to only one point in the case, whereas the proceedings as originally drawn related to the disputes at both points A and A-3; and that it is unfair to restrain only one party with reference to the dispute at point A-3 so long as there is no determination of the dispute arising from the changed situation at point A. There would have been great force in this argument had it not been agreed at the trial that there was no dispute about the point A. The question then reduced itself to this; whether first party had proved that because of the state of things now existing at point A (as to which there is no dispute) there had been an agreement to alter the state of things at point A-3 as determined by the High Court decree. The Magistrate has found that the first party have not proved this alleged agreement; and that being so it seems to me only right that it ought to be the first party which should go to the civil Court to establish this agreement varying the decree of the High Court if they can.

5. The second ground on which the order is sought to be supported is that the criminal Court has no jurisdiction u/s 147 to pass the order proposed by the learned Sessions Judge because of the proviso to Clause (2) of that section. The argument is that as the second party have not exercised the right of closing the qutting in the bank within three months next before the institution of the enquiry, no order entitling them to close the cutting can be made. This argument, in my opinion, rests on a misapprehension of the meaning of the second clause and its proviso. The second clause is clear that where a right exists, the Magistrate may make an order prohibiting any interference with its exercise. Now the right here is not the right to fill up a cutting in the bank but a right to the water coming through the pyne; and it is indispensable to the exercise of that right, that the cutting in the bank should be closed. This is merely a matter ancillary to the declaration of the right to the water and if the first party are to be prohibited from interfering with the exercise of the water on the part of the second party, this can only be done effectively by restraining them from preventing the second party from closing this cutting in the bank. I can see nothing in the proviso against passing of an order of this kind. It is in no sense a mandatory injunction. No one is being compelled to do anything. It is an ordinary injunction restraining the first party from interfering with the exercise of the rights to the water which have been declared to be in the second party by preventing them from interfering with the closing of the cutting by which the water is being diverted.

6. Consequently I must accept this reference and set aside so much of the order of the Magistrate as prohibit the second party from exercising their rights to this water and add to the prohibitory order against the first party an order restraining that party from interfering with the second party in closing the cutting in the bank of the pyne.