JANESHWAR DEVI DUTT Vs. VED

JUDGEMENT

(1.) application in revision arises out of the proceedings under Section 133, Cr. P. C. On January 17, 1976, Janeshwar filed an application under Section 133, Cr. P. C. on the ground that he had purchased plot No. 700 and that a public pathway ran through this plot. But the opposite parties had brought the land of the public pathway under cultivation causing obstruction to the same. After calling for a report from the Tahsildar, the Magistrate passed a conditional order on May 19, 1976, directing the opposite parties to remove the obstruction or to show cause. The opposite parties denied the public right of way over the land in question. They produced oral and documentary evidence in support of their denial. The Magistrate on a consideration of the same was of the opinion that there was no reliable evidence in support of the denial of the existence of the public way. He accordingly directed the parties to produce their evidence under Section 138, Cr. P. C. by 'his order dated July 8, 1977. Aggrieved thereby a revision was filed by Ved Singh and others which has been allowed on March 30, 1978. The Sessions Judge has set aside the order of the trial court and directed stay of the proceedings till the rights of the parties are decided by a competent court. Aggrieved thereby the instant revision has been filed. I have heard counsel for the parties and have also perused the impugned orders. A preliminary objection was taken by the applicants' counsel that the order passed by the Magistrate under Section 137 (2) Cr. P. C. was not a revis-able order. It was an inter locutary order and no revision could be filed before the Sessions Judge, Saharanpur. I am not inclined to accept this submission. An order under Section 137 (2), Cr. P. C. contemplates stay of proceedings if any reliable evidence has been led by a party in support of the denial of the public right. The trial court had decided that there was no reliable evidence, and, therefore, it did not stay the proceedings but directed the parties to lead evidence under Section 138, Cr. P. C. For purposes of arguments let us assume that the order passed by the Magistrate was wrong and that there was reliable evidence in support of the denial. In that event it was mandatory upon the Magistrate to stay the proceedings under Section 137 (2), Cr. P. C. I do not think it would be correct to hold that if an order refusing to stay the proceedings and directing the case to go on under Section 138, Cr. P. C. is passed it would be an inter locutary order, but, if an order staying the proceedings is passed under Section 137 (2), Cr. P. C. it would not be an inter locutary order. A court of law, if it takes an erroneous view, may assume jurisdiction and pass an order one way or the other. Therefore; if by erroneously deciding that there is no reliable evidence in support of the denial, court refuses to stay the proceedings under Section 137 (2), Cr. P. C. and proceeds to take evidence under Section 138. Cr. P. C. it cannot be said that such on order cannot form 'he subject matter of revision and would fall in the category of an inter locutary order. There. s abundance of authority for this proposition that the court cannot assume jurisdiction by a wrong decision even on a question of fact which goes to the root of the matter. In the instant case the Sessions Judge has pointed out that there were two documentary evidence on the record, namely Khasra of 1384 Fasli and Khatauni of 1383 to 1385 Fasli, which had not been considered at all by the trial court. In the remarks column of the Khatauni there is reference of Case No. 354 of 1975 decided on September 23, 1975 on the basis of which mutation had been ordered in favour of Kallu Ram and Chandra Pal and Surendra Pal. He was of the view that if these documents had been taken into consideration, it would clearly indicate that there was reliable evidence in support of the denial of title. The Sessions Judge, therefore, thought it proper to stay the proceedings tinder Section 137 (2), Cr. P. C. till the rights of the parties had been finally adjudicated upon by a competent civil court. The trial court had certainly committed an illegality in the exercise of its jurisdiction in not at all adverting to these documents, as is evident from a perusal of his order. In my opinion, therefore ,the order in question cannot be deemed to be an inter locutary order and in view of the decision in the case of Madhu Limaye (A. I. R. 1978 S. C. 47.) such an order must be taken as a revisable order and not barred by Section 397 (3) Cr. P. C. The applicants' counsel has then argued that Ved Singh, who filed this revision, was not a party to the original proceedings. I have carefully scrutinised the application under Section 133, Cr. P. C. filed on behalf of Janeshwar. In that Vedu, son of Bucha has been shown as opposite party No. 1. This Ved Singh is no other but Vedu, son of Bucha. It- is significant to note in this connection that before the Sessions Court no such objection was taken by the learned counsel for the applicant. This is purely a factual matter. If the applicant was really aggrieved he could have objected before the Sessions Court that the revision filed before him had not been legally instituted, and could not be entertained. But no such objection was admittedly taken. For this reason, I am not inclined to accept this contention. Lastly, it has been argued that the Khasra and Khatauni cannot prove the title of a party nor can it prove existence or otherwise of the public pathway. In the remarks column of the Khatauni, was already mentioned above, the names of Kali Ram, Chandra Pal and Surendra Pal has been entered as Bhumidhar on the basis of an order given by the Tahsildar in case No. 354 decided on September 23, 1975. This entry in the remarks column does indicate at least that there is reliable evidence on the record in proof of the title. What is the final effect of the entry would be decided by the civil court in, the exercise J its jurisdiction but the documentary evidence as it existed today and as has been filed before the Magistrate, does take the case out of the purview of Section 133, Cr. P. C. The Sessions Judge, has, therefore, rightly stayed the proceedings under Section 137 (1) Cr. P. C. and directed the parties to go to the civil court for adjudication of their rights. For the reasons given above, I do not find any force in this revision which is hereby dismissed. .