ISTEYAQUE ALI Vs. STATE OF BIHAR

JUDGEMENT

(1.) ORDER :- This Criminal Revision has been filed by the sole petitioner against the order dated 25-9-1999 passed in M.Case No. 186/99 by which the learned Executive Magistrate passed an order under Section 133 of the Code of Criminal Procedure directing the petitioner to remove the wire fencing and drain from the 12 feet passage situated on Municipal Plot No. 577 measuring an area of 10 decimals.

(2.) The short facts giving rise to this Revision is that the Opposite party No. 2 had filed a petition before the learned Sub-Divisional Magistrate, Lohardaga stating therein that the land appertaining to Plot No. 1389 corresponding to Lohardaga Municipal Survey Plot No. 577 having an area of 10 decimals situated at village Nadia Amlatoli, Lohardaga has been purchased in the year 1935 from the ancestors of the petitioner in which there was 20' passage. It was further alleged that the petitioner wants to grab the said land and has blocked the said passage and also has been using the drain as a result of which the Opposite Party No. 2 is facing trouble. On the basis of the said petition, M. Case No. 186/99 was registered and the petitioner was noticed to show cause. Thereafter, the petitioner appeared and filed his show cause, denying the existence of any public road, but the learned Magistrate without giving any opportunity to the petitioner passed the impugned order which is illegal and fit to be set aside. The Opposite party No. 2 filed reply to the show cause stating therein that the land in question is the purchased land of grand-father of the Opposite Party No. 2 and it was purchased as back as in the year 1935. It is further alleged that the purchaser had left space of 12' as public road since 1936 and the same was also found correct by the Anchal Adhikari, who held local enquiry. It is also stated that the learned Sub-Dividional Magistrate

(3.) The learned counsel appearing on behalf of the petitioner submitted, at the very outset, that the learned Magistrate committed error in passing the impugned order without giving any opportunity to the petitioner to adduce evidence as to whether there was any passage or not, when the petitioner had already denied about the public passage at the spot. It is also submitted that the Opposite Party No. 2 had already filed a Title Suit being Title Suit No. 31 of 1999 in the Court of the learned Munsif, Lohardaga, which is still pending for adjudication and as such the learned S.D.M. has got no right to decide the case in a proceeding u/S. 133, Cr. P.C., when the title suit for the same land is pending before the Munsif, who is the competent authority to decide the right, title and possession over the land in question. It is further argued that the rent in respect of the land in question was also fixed by the learned L.R.D.C. vide his order dated 1-8-1996 in favour of the petitioner and the petitioner has been paying the rent since 1952 till the date. It is also argued that the Opposite Party No. 2 had also filed an appeal being Appeal No. 6R-15 which was also decided by the learned Additional Collector, Lohardaga in favour of the petitioner, as the appeal was dismissed on 22-2-1999 and as such the learned Magistrate passed the impugned order without jurisdiction and it is fit to be set aside. The learned counsel for the petitioner also relied upon the cases reported in 1998 (46) 1 BLJR 58 (Dr. Om Prakash Mahansaria v. State of Bihar); 1998 (2) East Cri C 254 : (1998 Cri LJ 320) (Cal) (Bhanu Mandal v. Jaydeo Choudhary) and 2000 (1) PLJR 814 (Md. Yunus v. State of Bihar).