GRAM SAMAJ MANUUTA Vs. BHONDI

JUDGEMENT

(1.) This revision has been filed by Gram Samaj Manauta through its PradbanAmar Singh, resident of village Menauta Police Station Gandhour, District Bijnoragainst the judgement and order dated 23.5 198 I, passed by Sri Jaswant Singh, II Additional Sessions Judge. Bijnor allowing the Criminal Revision No. 40. of 1979 preferred by Opposite parties Bhondi and another against the judgment and order dated 19.12.82 by Sri V p. Singh, S.D.M Bijnor under Section 133 Cr. P. C. in case no. 40 of 1979 State Vs Bhondi and others directing the opposite parties Bondi and Mangli not to use the western door of their house and also net to use the open land lying before the western door. The proceedings under Section 133 Cr. P. C. were initiated against the Opposite Parties Bhondi and Maligli on an application of Amar Singh, Pradhan of the village on behalf of Gram Samaj Manauta.

(2.) It was alleged by the Gram Samaj Manauta that there is a public land lying in front of the western door of the house of Opposite parties Bhondi and Mangli and the said door had been opened recently by them in order to use the said public land, which was used by the village people for burning Holi and celebrating other functions. The learned Magistrate called for a report from the Naib Tahsildar who by his report dated 30.9.80 admitted that the Opposite parties Bondhi and Mangli had recently opened a door on the western side of their house towards the open land which was meant for burning Holi and for celebrating other functions by the village people and after the receipt of the report of Naib Tahsildar, the learned Magistrate passed - conditional order on 10 12- 1979 asking the opposite parties to remove the door and also cattle troughs from the public land within 15 days or. show cause and further directed Opposite parties to appear before his court on 20-3-80. In pursuance of the aforesaid directions, the Opposite parties appeared and filed Written Statement and asserted that the door on the written side of their house was an old one and they have been using the open land lying adjacent to their door since long It is appurtenant to their house and the land is not a public land. It was further asserted by them that Sri Amar Singh Pradhan is inimical to them and misusing his position to harass them. They also examined Mangli (DW.1), Pati Ram (DW.2) Bhagwan (DW.3) Bhondi (DW.4) and all of these witnesses have clearly stated in their evidence that the door of the opposite parties on the western side of their house was an old one and they were using their door and the adjacent land since long. The statements of DW5 1 to 4 went unchallenged and no cross-examination was done by the applicant. The Opposite parties have also examined DW. 5 Ram Das to prove the application dated 20 3-80 sent by the Opposite Party Mangti to the Superintendent of Police, Bijnor. complaining regarding the high handedness of Amar Singh Pradhan of the village.

(3.) Sri R.H. Zaidi, learned Counsel for the applicant rightly contended that the learned Sessions Judge was in error in holding that the report of Naib Tahsildar was not admissible in evidence as the Naib Tahsildar was not examined to prove his report. It may be noted that the report of the Naib Tahsildar is admissible in evidence in view of the provisions contained in Section 141 J(l) Cr. P.C. It was further contended by the learned Counsel for the applicant that there was sufficient evidence on the record to prove that the Opposite parties bad encroached the open public land and had opened the door recently on the western side of their house and thus causing nuisance on the- public land but the record of the case speaks otherwise. As a matter of fact no evidence, on behalf of the applicant was adduced after passing of the conditional order and also after the opposite parties appeared and bad denied the existence of the public land or guilty of causing any nuisance. It may be noted that the Gram Samaj Manauta, District Bijnor filed that application under Section 133 Cr.P.C through its Pradhan Amar Singh before the Sub. Divisional Magistrate but during the enquiry Amar Singh Pradhan did not come in the witness box. The Gram Samaj Manauta did not produce any witness to the effect that the Opposite parties had opened the western door in their house in recent times or that the land in dispute is public land. The learned Magistrate without recording any further evidence of the applicant simply relying upon the aforesaid report of the Naib Tahsildar dated 19-12-80 made the conditional order absolute directing the Opposite parties not to use their western door for egress and ingress through the land in dispute. It was imperative for the learned Magistrate to have asked the applicant to produce evidence in support of its case after the opposite parties had denied the existence of the public land and any nuisance being committed by them. The learned Magistrate fell in error in making the conditional order absolute without further enquire to the matter after passing of the conditional. Sri Haider Husain, learned counsel for the Opp. Parties cited a case reported in Gopalaswamy- v. State of Mysore wherein it was held that the conditional order under section 133 Cr. P.C. cannot be made absolute without recording further evidence of the complainant by the Magistrate and if it is done so, the order would be illegal. It is therefore, abundantly clear that the learned Magistrate solely relied on the report of the Naib Tahsildar and made the conditional order absolute without recording any further evidence. Moreover, it is also apparent that there is overwhelming evidence on the record on behalf of the opposite parties denying any public right on the land appurtenant to his door on the western side and their statements also went unchallenged. The Pradhan Aofar Singh who had filed the complaint before the Magistrate did not come in the witness box in support of the case. No other witness was examined by the Gram Singh after passing of the conditional order in support of the report of the Tahsildar. Therefore, the net result is that the learned Magistrate acted illegally in making the conditional order absolute without complying the provisions contained in Section 137 and 138 Cr. P.C. The learned Magistrate has also ignored the overwhelming evidence produced by the Opposite parties ID this case in support of their denial. Therefore, the order of the learned Magistrate dated 19-12-80 has been rightly set aside by the learned Sessions judge.