PYARILAL AND CO Vs. E G ROOKE

JUDGEMENT

(1.) It appears to me that we ought not to alter the judgment complained of in this case. It is now pointed out to us by the learned counsel who appeared for the petitioner that the order of the Magistrate was not passed under section 308, but section 320 of the Code of Criminal Procedure. That section is in these words, "if a dispute arising concerning the right of use of any land or water, the Magistrate within whose jurisdiction the dispute lies, may enquire into the matter, and if it shall appear to him that the subject of dispute is open to the use of the public, or of any person, or of any class of persons, the Magistrate may order that possession thereof shall not be taken or retained by any party to the exclusion of the public, or of such person, or of such class of persons, as the case may be, until the party claiming such possession shall obtain the decision of a competent Court adjudging him to be entitled to such exclusive possession." Now if we accept the argument of the learned counsel, that the effect of a decision by the Magistrate under section 320, is to alter the position of the parties in respect of their remedies in the Civil Court, or in respect of their right to bring an action, and if we take the finding, as we must take the finding of the Court below, in respect of the facts, then we find that this was a piece of land of which the plaintiff claimed to be entitled to the exclusive use. He denied that the public or any persons had any right whatever in any way to make use of the land in dispute. The Magistrate found, and the Civil Court has also found, that he was not entitled to such exclusive use, and that the public ware entitled to walk over that road, and to use it as a foot-path. That being the case, I think the Magistrate's order was perfectly right; namely, that he was quite light in ordering that the possession should not be taken or maintained by this plaintiff to the exclusion of the public until the party claiming such possession shall obtain a decision adjudging him to be entitled to such possession.

(2.) Then what is the decision which the plaintiff would have to obtain for the purpose of getting rid of the effect of that order The section shows that it was a decision adjudging him to be entitled to such exclusive possession. It is quite clear that the Court could not adjudge him to be entitled to such possession. The Court could indeed say that the suit was groundless; that the public was entitled to the right of way, a right to walk over that land; and that the Court could not deprive the public of that privilege. But if any person should go beyond the right which was found, that is, the right which the public bad to walk over that land, and should take his carts over the land in dispute, and the plaintiff should be undamaged thereby, the plaintiff would have a right of action against such person for the trespass. I still think that the Civil Court in trying this suit went beyond its jurisdiction, and made an improper order.

(3.) I also think that we could not take the coarse suggested by the learned counsel, namely of correcting the error in point of form committed by the lower appellate Court, and confirming merely its finding upon the issues, because neither of the issues was the issue contemplated by section 320, nor do I think was the lower Court competent to try the issue whether the road in the first was or was not a public road.