RAMESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application in revision against the order of the learned Magistrate in a proceeding under Section 133 of the Criminal Procedure Code directing the petitioner, who is a Mokhtear, to remove his house from the Railway Pipe land by 30th November 1955.

(2.) The facts are that the proceeding was started against the petitioner on the application of the Divisional Superintendent of the Eastern Railway of Danapore. It is the case of the first party-opposite party that on 7th November, 1953, it was discovered that in plots Nos. 523 and 497 there had been encroachment of railway land. It is said that the Mokhtar, who is the petitioner in this application, had built his house on plot No. 523, and the other person, namely Ganesh Lal Saraugi had put up a wall on plot No. 497. Ganesh Lal Saraugi is not before me. The claim of the petitioner was that he built his house long time ago, and, therefore, the proceeding under Section 133 of the Code of Criminal Procedure had no application to the facts of the present case. It transpires that some witnesses have deposed to the fact that the Mokhtar in question had encroached on the said plot by constructing a house as far back as 1947, that is to say the house was constructed in that year. The proceeding began in 1954. It is thus clear that the house had been in existence since near about seven years. The trial court was of the view that the petitioner has not acquired a prescriptive right over the land and hence, there was no title acquired by way of adverse possession. The trial court has taken a completely wrong view. There is no question of any adverse possession. All that has to be seen is whether there was long user after the encroachment is said to have taken place. There is a decision of this Court that where there is a long user, the jurisdiction of the Magistrate, to dismiss the case summarily under Section 133 of the Code of Criminal Procedure is ousted. For this purpose, I would refer to the decision in Bhajoo Gope v. Haji S. Gholam Haidar, 21 Pat LT 1028 (A). It is true that that was a case which decided on the jurisdiction of the Magistrate at the stage when the Magistrate is to pass an order under Section 133 of the Code of Criminal Procedure.

(3.) There is, however, another decision of this Court in Ramkripal v. Supdt. Way and Works, E.I.R. Gaya, ILR 24 Pat 104: (AIR 1945 Pat 309 (B). This case, which I have just referred to, was consid red in that case with approval with certain amount of qualification. In ILR 24 Patna 104: (AIR 1945 Pat 309 (B), it was decided that where there is evidence on the record for the Magistrate to come to the finding that there was no long user, then the jurisdiction of the Court is not ousted. In the former Patna decision, it was assumed that where long user is established, then the claim of the opposite party at that stage, which is tantamount to denial of public right etc., has a bona fide colour and it is not open to the Magistrate to summarily take action against the opposite party. In my opinion, the proceeding under Section 133 of the Code of Criminal Procedure is not to be taken in a case where there has been a long user. It is not intend ed that the proceeding under Section 133 of the Criminal Procedure Code should be substituted for a civil suit in a Civil Court. In this connection, I would refer to a decision of the Allahabad High Court reported in Farzand Ali v. Hakirn Ali, ILR 37 All 26: (AIR 1914 All 491) (C) where it has been held: