GURDIAL SINGH Vs. PARMINDER SINGH & ANR

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code'), has been filed for setting aside the orders passed by the Sub Divisional Magistrate, Garhshankar, dated 2.6.1989, passed in proceedings under Section 133 of the Code, and that of the Addl. Sessions Judge, Hoshiarpur dated 21.7.1990, whereby the revision filed by the petitioner against the order dated 2.6.1989, was dismissed.

(2.) The facts of this case giving rise to the filing of this petition are that Parminder Singh, respondent No. 1 filed an application under Section 133 of the Code before the Sub Divisional Magistrate, Garhshankar for removal of the obstruction caused by Narinder Singh, respondent No. 2 and his father Gurdial Singh (now petitioner). In public passage marked 'ABCD' shown in red colour in the site plan. It was alleged that public passage marked 'ABCD' was used by Parminder Singh and his forefathers and by the public in general. There is outlet at point 'X' for the discharge of water of his house and the water of the house of later Chanan Devi also flows from the said street since time immemorial. The gate of the house of late Chanan Devi also opens in this public street. It was alleged that about six months ago Narinder Singh, respondent No. 2 in connivance with his father Gurdial Singh forcibly and illegally obstructed the said passage by including the same in his compound after demolishing the wall of the house of Parminder Singh, respondent No. 1 and his father Narinder Singh also raised level of his passage by putting earth and constructed a bath room and temporary Chhappar in it. Shri Avtar Singh father of Parminder Singh moved an application on 1.9.1998, before the Gram Panchayat of his village. A compromise was got effected on 11.9.1988 whereby Narinder Singh, respondent No. 1 agreed to remove obstruction and open the said public street within 2 months and he signed the compromise. However, Narinder Singh respondent and his father Gurdial Singh (now petitioner) did not remove the obstruction in the public street), which necessitated the filing of an application under Section 133 of the Code before the Sub Divisional Magistrate, Garhshankar, as indicated above. On consideration of the matter, the Sub Divisional Magistrate, passed a conditional order under Section 133 of the Code requiring the petitioner and his father Narinder Singh, respondent No. 1 to remove the obstruction in the public street within 15 days and to appear before him on 30.3.1989 to show cause as to why the conditional order be not made absolute and enforced.

(3.) The petitioner and his father Narinder Singh, respondent No. 1 contested. the application under Section 133 of the Code by way of controverting the allegations made therein. They alleged that Gurdial Singh filed a civil suit against Avtar Singh, father of Parminder Singh, respondent No. 1 in respect of the same cause of action in the Court of Addl. Senior Sub Judge, Hoshiarpur and the temporary stay granted had been confirlned. It was denied if there existed any public street. It was further alleged that the passage marked 'ABCD' is in fact a part of the courtyard of the house of Gurdial Singh and Narinder Singh, respondent and the applicant Parminder Singh has got no right to claim passage out of it. They further prayed that the proceedings under Section 133 of the Code be stayed till the decision of the civil suit.