DAYARAM Vs. JAMUNA PRASAD

JUDGEMENT

(1.) THIS revision has been filed by the applicant against the order passed by the District Magistrate under section 144 of the Code of Criminal Procedure directing him to open the common entrance door and to demolish the wall in order to provide passage to the non -applicant to his residential house which is on the back side of the house of the applicant. The order has been confirmed in revision by the Sessions Judge.

(2.) IT is not in dispute that the applicant and the non -applicant are stepbrothers and there has been a mutual partition of their ancestral properties more than 20 years back. The front portion of the house has been allotted to the share of the applicant and the back portion to the share of the non -applicant. On 4 -7 -1973 the non -applicant moved an application under section 144 of the Code in the Court of the District Magistrate, Satna alleging that the common passage through the building of the applicant has been closed by the applicant with the result that there is no approach to his house which is on the back side. The District Magistrate called for a report of the Tahsildar and on receipt thereof he passed the preliminary order on 16 -7 -1973 directing the applicant to remove the obstruction and keep the approach open. In reply to the show cause notice the applicant denied that there is any such passage through his building but on the other hand submitted that there is a common passage by which the portions of the respective parties can be approached from the public road. The alleged common passage is, in fact, a portion of the building of the applicant which has been reconstructed about nine years back and it is meant for use by the womenfolk in his house and if the passage is open, their privacy will be disturbed. Since the non -applicant also made an allegation that inspite of the preliminary order the applicant has not opened the passage, the District Magistrate directed the S.D.M. to verify the matter on the spot. After hearing the parties, the preliminary order has been affirmed and the applicant has been directed to open the passage and demolish the wall. A revision preferred against the order has been dismissed by the Sessions Judge.

(3.) ACCORDINGLY , the revision is allowed. The orders passed by the District magistrate and the Sessions Judge in revision are set aside and the proceedings under section 144 of the Code of Criminal Procedure are filed.