Dhavle, J.This is an application in revision against an order u/s 144, Criminal P.C., passed by the Sub-divisional Magistrate of Bhabua on 8th September 1941. On 23rd September, the District Magistrate of Shahabad who was moved in revision against the order of the Sub-divisional Magistrate declined to interfere as he had already considered the merits of the case on a previous occasion and saw no grounds for reconsideration.

2. On 21st April 1941, the first party before the Sub-divisional Magistrate (being the opposite party in this Court) complained to the Magistrate that the second party (the petitioners here) were building on their plot No. 268, and that their eaves were encroaching on the complainants plot (No. 267) which adjoined and that their rain water would fall on the complainants land and cause damage. The Magistrate recorded that he was satisfied that a danger of breach of the peace was imminent and issued notice u/s 144(2) against Ram Narain Sahu of the second party "to refrain from further building his house on plot No. 268 for a period of two months.... Work must stop and he may show cause against the order by 9th May 1941."

3. The second party denied any encroachment and the Magistrate had a measurement made by an overseer The overseer reported an encroachment, and the Magistrate gave time to the parties to file further written statements. The second party again denied any encroachment and said that the wall objected to had been already rebuilt on the foundations of an old wall, that the entire open space between the two plots belonged to the second party, and that the first party had already brought a civil suit for the removal of the alleged encroachment. They also filed the mosanna or copy of the plaint of the first party served upon them and urged that the notice issued against them be cancelled. The Sub-divisional Magistrate proceeded on the footing that neither side had dared to challenge the overseers report, and in the view that "immediate prevention is desirable in order to prevent annoyance to the first party and disturbance of the public tranquillity."

4. He ordered the second party u/s 144 "to take the following order regarding the property in his possession. He will immediately vacate a triangular portion measuring 2 feet 9 inches at the base and 18 feet long, which represents his encroachment on plot No. 267, and he will immediately remove the new wall which sits on this encroachment and occupies an area 1 feet 3 inches at the base and 10 feet long, and he will immediately take such steps with regard to his property on plot No. 268 as to prevent a single drop of his eaves water falling on to plot No. 267."

5. He warned the second party that failure to obey the order by 15th June 1941 would "result in stern action from the Court," and curiously enough, added that the order would remain in force for two months, saying that "this will leave a margin of 1J months for the parties to settle down to the position determined by me."

6. This was on 2nd June 1941. The second party at once moved the District Magistrate in revision, and on 12th August 1941, the District Magistrate saw no reason to interfere, as the order of the Magistrate was substantially based on the report of the overseer which was not challenged by either party, and there was "nothing perverse in the order of the learned lower Court who has given plausible reason in support of his findings."

7. On 28th August, the first party moved the Sub-divisional Magistrate on the ground that the second party had not yet removed the encroachment. The Sub-divisional Magistrate referred to the fact that the District Magistrate had dismissed the petition in revision filed by the second party, and directed that a copy of his order of 2nd June, be served "at once for compliance" on the second party. "As the old period expired on 2nd August 1941, the Magistrate added "the same order is passed again u/s 144, Criminal P.C., as I am satisfied that there is serious apprehension of breach of peace and immediate prevention is necessary, for a period of one month commencing from to-day, the former order not yet being complied with by second party."

8. On 8th September, the second party applied to the Magistrate, urging "that the disputed wall existed before the proceedings started and it cannot be removed u/s 144, Criminal P.C., especially when a civil suit is pending to decide the issue" that "at least the overseer should be examined and cross-examined to know the reality of his measurement and its accuracy," and that the Magistrates order be postponed till the decision of the civil Court. The Sub-divisional Magistrate rejected this petition, relying on the fact that the District Magistrate had found nothing perverse in his previous order. He considered that the words of Section 144, Criminal P.C., "to take certain order with certain property in his possession or under his management" were quite dear, and that his order u/s 144 "was nothing else but this." In his view Section 144, of which "the, essence" is "time and urgency," did not contemplate that the Magistrate should await the decision of the civil Court:

Finally, the second party have not even filed certified Copy to show that he has brought any civil suit with regard to this matter.

9. The application of the second party was therefore rejected, and he was given "time until 22nd September 1941 to comply with my order, failing which he will be liable to the penalty for disobeying an order u/s 144, Criminal P.C."

10. This is the order now challenged. An application against it was rejected by the District Magistrate who declined to reconsider the merits, and though a certified copy of the plaint in Title Suit No. 61 of 1941 dated 8th May 1941, had been filed before him and it appeared from the order of the Munsif dated 25th August 1941, that the case was shortly due to be heard, he said that it was open to the petitioners to move the lower Court for a review and for stay of the order of removal of the wall pending the decision of the civil Court.

11. That the lower Courts were in error at point after point seems obvious. The Sub-divisional Magistrate, for instance, took it that the period of two months during which his order was to remain in force ran from 2nd June 1941, but it is settled law that the period runs from the date on which the first notice is issued: see Puran singh v. Ramjhari Koer AIR 1935 Pat. 224 [LQ/PatHC/1935/30] . The Sub-divisional Magistrate also thought that it was the petitioners that had brought the civil suit, while it is clear that the suit was brought by the other side. The lower Courts both thought that it was necessary for the petitioners to file a certified copy of the plaint, but this was surely unnecessary when the petitioners filed the copies of the plaint that had been served upon them together with the summonses as defendants in the suit. In the affidavit before me it is said that the opposite party filed their suit on 5th May 1941, and this allegation is not denied, so that it must be taken that the opposite party had filed their suit before the Magistrate dealt with the matter on 2nd June. According to para. 12 of the plaint the wall was raised on 5th April 1941, and the thatching was completed oh the 21st of that month, dates which make it perfectly clear that the Magistrate ought, with a due regard to the nature and limits of his jurisdiction in such matters, to have left to the civil Court the decision of their disputed rights.

12. Section 144, Criminal P.C., which constitutes Chap. 11 provides for "Temporary Orders in Urgent Cases of Nuisance or Apprehended Danger" (to quote from the heading of the chapter), while Chap. 12 provides for magisterial action in "disputes as to immovable property." The urgency of a case of nuisance or apprehended danger is essential to its treatment u/s 144, and the orders to be passed under the section must be of a temporary nature as is shown clearly by Sub-section (6) of the section providing that no order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government by notification in the Official Gazette otherwise directs. Such orders are passed in the general interests of society and may validly interfere, within the limitations laid down, with private rights of enjoyment of property, as was held by the Full Bench in Bykuntram Saha Roy v. Meajan 18 W.R. 47 Cr and in later cases such as Tekait Kunj Behari Narain Deo v. Bhiko Singh 5 C.W.N. 329 . There is therefore all the more reason why the jurisdiction u/s 144 ought to be exercised carefully and interference with private rights reduced to a minimum and regulated by a full observance of the limitations imposed by the section itself. The Magistrate is authorized by the section in proper cases to "direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management." The abstention from certain acts must obviously not be carried too far. In B.N. Sasmal Vs. Emperor, Rankin C.J. held that the expression does not empower Magistrates to make a positive order requiring a person to do particular things. This is sometimes expressed as was done by Chatterji, J. in Bimala Kanta Bagchi v. Sanat Kumar Ghose AIR 1938 Pat. 610 [LQ/PatHC/1938/121] , by saying that Section 144 does not authorize the passing of any mandatory order--he may only pass a restrictive order and cannot, for instance, as in that case, order a party to remove a fence erected by him to enclose property marked off by boundary pillars erected by himself, nor use Section 144 to dispossess such party. Any order u/s 144, whether it directs a party to abstain from a certain act or to take certain order with certain property in his possession etc, must be of a temporary character, which means that it must not be irrevocable in its nature or partake of the character of a perpetual injunction. Even before the limit of two months was introduced by the Criminal Pro. Code of 11882 it was held in Uttam Chunder v. Ram Chunder13 W.R.Cr. 72 that the Magistrate has no power "to issue any order which is by its very nature irrevocable," such as "an order to cut down a large quantity of trees": see also Umatal Fatima v. Nemai Charan Banerji 32 Cal. 154, and Tilak Kohar v. Emperor AIR 1929 Pat. 523 [LQ/PatHC/1928/125] , which Fazal Ali J. (with the concurrence of Courtney-Terrell, C.J.) observed that it is well established law that it is beyond the jurisdiction of a Magistrate to pass an order u/s 144 requiring people who had erected a bundh to remove it.

13. In the present case the Magistrate required the petitioners to remove a wall erected by them, and the learned advocate for the opposite party has endeavoured to support this by citing Lachmi Narain v. Nandkishore Singh AIR 1940 Pat. 57 [LQ/PatHC/1939/176] , decided by Agarwala, J. The facts of this last case, however, do not appear very clearly from the report, and the placitum is not altogether in accordance with what the learned Judge probably intended to decide. "Where a party erected a bundh on the land of another," runs the placitum, "to obstruct the flow of water and the Magistrate directed the party in possession to cut the bundh," the Magistrate was held empowered by reason of the words "to take certain order with property in his possession etc" "to pass a mandatory order on persons in possession of property." It appears from one portion of the judgment that the bundh was erected by the second party, in anticipation of and in order to frustrate an order u/s 144 "on land which was not in their possession and to which they had no right whatsoever." It was, moreover, not the second party that was required to remove the bundh but the first party that was permitted to remove the obstruction to the flow of water, the local Police being directed to assist in the removal. The decision is thus easily distinguishable on the facts, and as to the view of the learned Judge regarding the authority of a Magistrate to pass a mandatory order on persons in possession of property, which was rested on Bala Ram De v. Pran Ram AIR 1937 Cal. 406 [LQ/CalHC/1937/80] , it seems to me, with all respect, that the words "to take certain order etc" must no less than the previous expression "to abstain from a certain act," be interpreted in the light of the provisions of Sub-section (6) which limit the operation of the order to a maximum of two months and by necessary implication exclude an order, such as an order demolishing a wall, which is irrevocable in its nature. The Magistrates jurisdiction u/s 144 is not a jurisdiction to assume the functions of the Civil Court, though he can decide questions of possession and of rights of user by appropriate proceedings under Chap. 12, Criminal P.C. In Daimulla Talukdar v. Maharula Talukdar 19002.7 Cal. 918, the Magistrate in fact decided a dispute between members of a family regarding their shares u/s 144, and it was held that his order was unauthorized, not merely because it was not passed in any emergency, but also because its operation was not limited to two months, and because he had taken it upon himself to decide questions of fact on Mahomedan law so as to satisfy himself as to what were the actual rights of the parties to the lands in dispute: see also Kamal Narain Adhikari T. Raja Jotindra Mohan Roy 8 C.W.N. 376. In the present case the Magistrate concluded from the measurements made by the overseer that the petitioners had encroached on the plot of the opposite party, but in doing so, he paid no attention to the allegation of the petitioners that they had only rebuilt the wall on the foundations of an older wall, and made use of Section 144 to give effect to his view of the title by requiring the petitioners to demolish the wall on pain of prosecution. It was held in Chhakan Ram v. Raghunath Ram AIR 1935 Pat. 145, that the propriety of the order whereby the Magistrate assumes the function of the Civil Court and makes an order which practically amounts to an order of ejectment on grounds of title may be questioned, though he may be technically justified by the fact that he records his apprehension of a breach of the peace, by which it was to be understood that he apprehended an affray at the door of the shop when one party desired that the door should be opened and the other party desired that it should not. The Magistrate has no jurisdiction u/s 144 to pass an order which "is not limited in time, but on the face of it purports to be of the nature of a perpetual injunction": Remjit Singh v. Luchman Prosad (03) 7 C.W.N. 140, where it was also pointed out that he had no jurisdiction to make an order for the renewal of the original order (see also Satish Chandra v. Emperor (07) 11 C.W.N. 79 and Rashbehari Singh v. Jagnarain Rai AIR 1917 Pat 154 [LQ/PatHC/1917/342] , where Eoe and Jwala Prasad, J J. pointed out that such renewals would operate "to extend an injunction u/s 144 without the sanction of the local Government."). I do not consider it necessary to refer the lower Courts to morereoent decisions of this Court in which it has been pointed out that it isnot open to a Magistrate to evade Sub-section (6) of Section 144 by repeating orders u/s 144.

14. The Sub-Divisional Magistrate on the present occasion did refer specifically to the limit of two months under Sub-section (6), without apparently understanding what it means, for it is difficult to see why on 2nd June he should have required the second party to remove the new wall by 15th June and yet say that his order was to remain in force for two months, or why on 28th August he should renew his order for one month and on 8th September give, the petitioners time till 22nd September to comply with his order. The District Magistrate also failed to see that an order to demolish a wall, if carried out, implies an order the operation of which would not be limited to two months; but this is far less surprising than his failure to see that with the civil suit already instituted by the opposite party the Magistrate should not have wasted his time by usurping the jurisdiction of the Civil Court (which incidentally would not have allowed execution before decree) and abusing in more than one respect the jurisdiction given to him by law. The orders of the Sub-Divisional Magistrate, though repeatedly approved by the District Magistrate, were entirely unjustified. The order of 2nd June is time expired; but its renewal on 28th August which was confirmed by the order of 8th September must be set aside, if only to prevent an unjustifiable prosecution of the petitioner for disobedience. The application in revision is accordingly allowed.