VILLAGERS OF SURE KALNA Vs. ANANTH BHANDU CHAUDHURY

JUDGEMENT

(1.) This is a reference under Sec. 438 of the Code of Criminal Procedure by the Additional Sessions Judge of Burdwan recommending that the proceedings under Sec. 133 of the Code of Criminal Procedure drawn up by a Magistrate on the 14th Feb., 1955 in respect of an alleged encroachment on a pathway in C.S. plot No. 451 of Mouza Sure Kalna which adjoins C.S. plot 450 which is admittedly the homestead of the 2nd party together with the final order passed in the proceedings on the 30th Dec., 1955 whereby the conditional order dated the 14th Feb., 1955 was made absolute should be set aside. The facts of the case briefly are that the 2nd party who admittedly owns G.S. plot 450 erected a wall on the northern boundary of C.S plot 450 and it is alleged that by constructing that wall the members of the 2nd Party encroached on the Union Board pathway in C.S. plot 451 to the extent of two inches and a half along the whole length of the wall which is said to be about 20 feet long. After the 2nd party showed cause against the conditional order of the learned Magistrate instead of an enquiry under Sec. 139-A(1) of the Code of Criminal Procedure as to whether there was any evidence in support of the denial by the 2nd party of the existence of a public right of way in the disputed land went into evidence under Sec. 137 and the learned Judge has made this reference on this ground as well as on the ground that there are no merits in the case and his recommendation is that not merely the final order should, but the entire proceedings should be set aside.

(2.) On reading the letter of reference and on hearing the learned Advocate for the parties it seems to me to be pretty obvious that this is really a boundary dispute and according to the 1st Party the 2nd Party has encroached on the Union Board Road to the extent of only two and a half inches along a stretch of about 20 feet. The question is whether such a boundary dispute really comes within the mischief of Sec. 133 of the Code of Criminal Procedure Sec. 133 runs as follows:-

(3.) It is not disputed that adjoining C.S. plot 450 is the Union Board pathway which is C.S. plot 451. What is however disputed is that the 2nd party has encroached on any part of this Union Board pathway or on any part of C.S. plot 451. As the alleged encroachment is only 21/2 inches wide along a stretch of about 20 feet it seems to me to be obvious that this encroachment, even if it actually took place, does not amount to an unlawful obstruction except in the very technical sense that an encroachment, however slight, is an obstruction and unless the encroachment amounts to an unlawful obstruction, the Magistrate has no jurisdiction to take action under Sec. 133 of the Code of Criminal Procedure. The proceedings therefore seem to me to be misconceived and on that ground alone the conditional order and its sequel viz., the final order should be set aside.