LAWS(ALL)-1972-8-36

BABU SINGH Vs. PARMAL AND ORS.

Decided On August 09, 1972
BABU SINGH Appellant
V/S
Parmal And Ors. Respondents

JUDGEMENT

(1.) This is a reference by the Temporary Civil and Sessions Judge, Etawah for quashing an order passed by the Tahsildar -Magistrate IInd Class Bidhuna dated 9 -6 -1970 in proceedings Under Sec. 133 Code of Criminal Procedure.

(2.) One Babu Singh Pradhan filed an application on 1 -7 -1969 Under Sec. 133 Code of Criminal Procedure on the ground that the opposite parties were obstructing the public way by raising construction thereon. A report was called for by the Sub -Divisional Magistrate from the Tahsildar. The report was submitted to the Sub -Divisional Magistrate, Bidhuna. On being satisfied from the report of the Tahsildar, the Sub -Divisional Magistrate passed a conditional order Under Sec. 133 Code of Criminal Procedure. He issued notices to the opposite parties requiring them to remove the obstruction within three days or to appear in his Court to show cause why the said order be not enforced against them. The opposite parties filed their objections. They denied the existence of any public right in respect of the alleged passage land which is said to have been encroached upon by their constructions and they claimed that the land belonged to them. It appears that on 27 -10 -1969 when part of the evidence had already been recorded by the Sub -Divisional Magistrate he passed an order transferring the case to the Tahsildar Magistrate II class, Bidhuna. The case proceeded there and on 9 -5 -1970 the impugned order was passed by the Tahsildar Magistrate. By this order he finally discharged the notice issued to the opposite parties.

(3.) Aggrieved by this order Babu Singh Pradhan filed a revision before the Temporary Civil and Sessions Judge, Etawah, who has made the present recommendation to this Court. The two points which were contended in revision were: