B ANANTHA SOMAYAJI Vs. STATE OF MYSORE

JUDGEMENT

(1.) This petition is directed against the order dt.27-2-1971 passed under S.139A on the Code of Criminal poceaure, by the Addditional Munsiff-cum- Magistrate, Bantwal in MC.No.2 of 1970.

(2.) There is one Mahalingeshwara Swamy Temple situated in survey Nos.142/1B plus 2 on Baniwal Kasana village, it is trust property. The petitioner is th managing trustee, .tie commenced constructing a compound wail round about this temple and within one area or the land survey No.142/1B plus 2. Some members of the public of Baniwal Kasaba objected, and complained to the buo-Uivisionai Magistrate" that they had a right ol way over this property and the petitioner, by constructing this compound wail, was causing obstruction to their said right oi way, and prayed that action be taken under Chapter X of the Code for getting the obstruction removed. It appears that the Sub-Divisional Magistrate, Mangalore, asked the police to enquire into the matter and submit a report.

(3.) On a report being duly submitted, he found that it was in support of the complaint made by the public of Bantwal Kasaba village and, therefore, issued a conditional order under S.133(1) of the Code. By that order he directed the petitioner to appear before Taluka Magistrate, Bantwal, and show cause why the order should not be made absolute and the obstruction be got removed. Further on it appears that the petitioner appeared before the Taluka Magistrate where the case was numbered as MC.1 of 1968. He subsequently moved this Court for transfer of the proceedings to a Judicial Magistrate and secured an order accordingly. The matter was transferred to the Court of the Additional Munsiff-cum-Magistrate, Bantwal, where it was re-numbered as MC.2 of 1970. The petitioner appeared there and put forward a denial in regard to the existence of the right of way claimed by some members of the public of Bantwal Kasaba village. The learned Magistrate held an enquiry under S.139A of the Code because of such a denial on the part of the petitioner. The petitioner apart from examining himself, produced documentary evidence in the shape of Exts.Rl to R12. Ext.R1 is Adangal extract, which is equivalent to extract of survey settlement register, in regard to the land in question and the surrounding lands. Ext.R2 to Ext.R10 are extracts from field measurement register. Ext.R.11 is another Adangal extract pertaining to the land in question and the surrounding lands. Ext.R12 is a copy of the consolidated village map issued by the village Accountant of Bantwal. As against this material, certain documents but no oral evidence, were produced on behalf of the State.