BISHWANATH SINGH Vs. RAJDEO DUBEY

JUDGEMENT

(1.) THIS application by the sole petitioner under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against order dated 4th of October, 1969 passed by Shri M. Pandey, Magistrate, first class, in a proceeding under Section 147 of the Code. In the said proceeding the petitioner was the sole member of the second party whereas the opposite party were the members of the first party. The dispute related to a right of passage over a piece of land measuring 2 1/2 kathas of land comprised in plot No. 687, Khata No. 241, situated in village Gobardhanpur, police station Dehri, district Shahabad. The proceeding was initially started under Section 144 of the Code which was later converted into one under Section 147 of the Code.

(2.) ACCORDING to the petitioner's case (sic), the disputed land was used as right of passage since time immemorial whereas according to the opposite party, the disputed land was their khas land on which no right of passage existed. ACCORDING to the opposite party, the petitioner had alternative right of passage. In order to substantiate their respective cases, on behalf of the petitioner six witnesses were examined and on behalf of the opposite party seven witnesses were examined, apart from the documentary evidence filed by both parties, The learned Magistrate held local inspection and a pleader commissioner was also appointed for local inspection and report. The learned Magistrate after considering the evidence on record held:

(3.) ON the basis of those observations learned Counsel for the petitioner submitted that there are series of cases on the point and now the law is well settled that the Magistrate must give a finding. If there is no such finding the order cannot be sustained.