RAM NATH Vs. MANGA

JUDGEMENT

(1.) I have heard the parties' counsels. The present petitioner has preferred an application under Section 145, Cr. , P. C. , setting up his title and possession to his house, which is in a dilapidated condition and maintaining that the present opposite parties are interfering with such peaceful possession of the petitioner and there is an apprehension of breach of peace. In reply the opposite parties neither claimed any title, nor claimed possession over the property in respect of which the proceeding was initiated by the present petitioner. They came forward with a totally different case maintaining that actually on a public passage, through which the opposite side pass while going from one house to another, the present petitioner is placing earth, malba etc. and wants thereby to include that portion also in his house. In nut-shell the pleas raised by the opposite parties are covered under Section 133, Cr. P. C. After going through the written statement of the opposite parties, filed before the lower Court, it is crystal clear that the substance is that there exists a public passage and obstruction on a portion of such passage is being caused by the present petitioner extending his house beyond the earlier limits to the passage itself. The Magistrate passed an order in favour of the petitioner prohibiting the opposite parties from interfering with the petitioner's possession over the sides of the two walls, i. e. , Northern and Western wall of the petitioner. The learned Sessions Judge rightly came to a conclusion that the application of Section 145, Cr. P. C. , is not attracted in view of the pleas raised by the two sides. In fact, the opposite parties were not claiming possession over any area of the petitioner's house. Their stand is that the petitioner is encroaching upon a public passage. In the circumstances, obviously, the opposite parties have no claim to any portion of the petitioner's house. At the same time, unless and until any application under Section 133, Cr. P. C. , is preferred before the Magistrate laying down the limits of the public passage, giving prima facie proof, that it is public passage and also showing the actual extent of obstruction caused over it, it will be impossible for the Magistrate to proceed under that Section. I may also mention that the procedure concerning proceedings under section 133, Cr. P. C. , is totally distinct and different from the procedure regarding the proceedings under Section 145 or 147, Cr. P. C. When that is the position, the present proceeding itself cannot be converted into a proceeding under Section 133, Cr. P. C. suo moto, by the Magistrate; but the opposite parties are fully at liberty to prefer an application under Section 133. Cr. P. C. While demarcating the extent of obstruction and encroachment caused, the Magistrate on. his satisfaction will be at liberty to proceed in the manner laid down under Section 133, Cr. P. C. and the subsequent sections. I also make it clear that the opposites parties do not claim any land, which is a part of the petitioner's house, nor do they claim any of the old wall of the petitioner's house, nor there is any dispute about it. In the result, this application is allowed and entire proceedings in Case No. 7 of 1980, Ram Nath v. Mangala Rai and others, pending in the Court of Additional Sub-Divisional Magistrate, Bansdih, District Ballia and the order of the Additional Sub-Divisional Magistrate, Bansdih, in that case as well as the order of the II Additional Sessions Judge, Ballia, in Criminal Revision No. 39 of 1980, are all quashed. But it is made clear that on a proper application being made by any of the opposite parties under Section 133, Cr. P. C. , the Magistrate concerned would immediately adopt the procedure under that section. .