ASHWANI PRASAD AND OTHERS Vs. KAMLA AND ANOTHER

JUDGEMENT

(1.) This application in revision is from the judgment of the Sessions Judge, Banda affirming the findings of the Magistrate that there was no reliable evidence in support of the denial of the public right of way as alleged by the complainant.

(2.) A man named Kamla complained to the Magistrate that the Applicants (objectors) had obstructed a public pathway lying across two plots and that action be taken against them Under Section 133 Code of Criminal Procedure. On 17-4-1963 the Magistrate made a conditional order restraining the Applicants from obstructing the pathway. The latter filed an objection and adduced evidence in support of denial of the right of way in terms of Section 139-A Sub-section (2) Code of Criminal Procedure. The Magistrate thereupon recorded evidence of the complainant's witnesses in rebuttal and after weighing the evidence of both sides came to the conclusion that there was no reliable evidence in support of the denial of public right of way.

(3.) The point which arose for consideration was whether the findings recorded by the Magistrate were in accordance with law. The Learned Counsel submitted that the procedure adopted by the Magistrate was contrary to the provisions of Sub-section (2) of Section 139-A in that he had not only considered the evidence produced by the objectors in support of denial of the public right but also evidence tendered by the complainant to show the existence of such a right. On the language of Section 139-A it appears clear that what the Magistrate is required to do is to consider only the evidence of the objectors in order to see that there is a prima facie reliable evidence in support of such denial.