RAGHUBAR DUTT Vs. SURESH CHANDRA

JUDGEMENT

(1.) The present revision under sections 391/401 of the Code of Criminal Procedure. 1973, (for short the Code), is directed against the order dated 13-1-83 passed by the Sessions Judge, Nainital, allowing the revision by the Sub-Divisional Magistrate, Haldwani, following the application and directing the opposite parties to remove the obstruction in public way in proceedings under sections 133/137 of the Code.

(2.) The short account of events leading to the present revision is that on 19-1-80 an application was moved on behalf of the present applicant that the opposite parties have created an obstruction on public way used by the applicant and by the public in general, hence the opposite party should be directed to remove the said unlawful obstruction. The Tahsildar Haldwani was directed to submit report. In the report submitted by the Tahsildar, Haldwani, it was stated that after taking evidence of the witnesses, in plot No. 394, area 1 biswa there was a public land used for public way and the same was entered as such till 1386 Fasli. But in 1387 Fasli the Lekhpal has expunged the entry of public way, rather he make an entry of Goth (a place for tethering catile) and recommended for removal of obstruction. Relying upon that report and considering the evidence, the Sub-Divisional Magistrate, by his order date 16-11-81 directed the opposite parries to remove the unlawful obstruction. Against the order a revision was filed by the opposite parties and the same was allowed by order 13.1.83 and the proceeding before the Sub-Divisional Magistrate ordered to remain stayed till the right of way made by the present applicant was decided by a competent court as provided under section 137(2) of the Code. It is against this order that the present revision has been filed.

(3.) Learned counsel for the applicant urged that the Sub-Divisional Officer has correctly passed the order allowing the application under section 133 of the Code directing the opposite parties to remove the obstruction from public way. But the learned Sessions Judge on misconception of the provisions of Section 133, read with Section 137 of the Code, has just cursorily looked into the evidence on behalf of the opposite parties, who had created obstructions and directed the proceedings to remain stayed under Section 133(2) of the Code till the dispute was decided by a competent court. Sri Harihar Prasad Tripathi Learned counsel for the State and Learned Counsel for opposite parties 1 to 3, on the other hand, urged that the impugned order was perfectly correct and under Section 133 of the Code the Magistrate has been given power to pass a conditional order requiring the person causing such obstruction to the public way, within time to be fixed, to remove such obstruction and a direction may be issued to appear on the date fixed to show cause as to why the order should not be made absolute. Section 137 of the Code enacts the procedure when the existence of public right is denied. The person against whom the order was made was to be put at question by the Magistrate as to whether he denied the existence of public right in respect of the way etc. and if he does so, the Magistrate, before proceeding under section 133 has to enquire into the matter. In view of Section 137(2) if the Magistrate finds that there is reliable evidence in support of such proceedings, he shall stay the proceeding until the matter of existence of such right has been decided by a competent court, and in case he finds that there is no such evidence he shall proceed as may contain in Section 138 of the Code. In the instant case the evidence led by the opposite parties was reliable which means only prima facie correct. There is nothing to indicate that there was any public way on the plot in dispute. Similarly in Khatauni of 1387 to 1302 F an area of 8 biswa of plot No. 394 was noted as Goth. Similarly in Khasra for the years 1374 to 1379 F. 8 biswa of plot No. 394 - A was recorded as Rasta and there was nothing to indicate on record as to how the area recorded as Goth came to be recorded as Rasta. On this evidence led by the opposite parties it has inferred that prima facie they have reliable evidence in support of their claim of existence of Rasta on the plot. Hence the proceedings under section 133 ought to have been stayed under section 137(2).