IDRIS Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision petition has been preferred under Sections 397/401 of the Code of Criminal Procedure against the order dated 25.4.1996 passed by the Sessions Judge West Champaran, Bettiah in Cr Revision No. 26/95 by which the order dated 22.2.1995 passed in case No. 655 of 1991 (T.R. No. 7 of 1994) by S.D.M., Bagaha, has been set aside. The order was passed by S.D.M., Bagaha under Section 147, Cr PC. directing the Opposite parties to remove the obstructions from the disputed land which was termed as a rasta of the petitioner for his ingress to the main road from his house.

(2.) Initially a proceeding under Section 144, Cr P.C. was drawn up by the S.D.M., Bagaha in respect of 16 dhurs of land of plot Nos. 1038 and 1039 of village Jogia having measurement of 9' in length East to West and 14" in width from north to south. It was alleged by the petitioner Md. Idris that by placing cowdung and others the opposite parties had created obstructions in the path for his ingress and outgress. The boundary of the alleged land was also given in the proceeding. Considering the dispute to be in respect of the land the proceeding under Section 144, Cr PC. was first converted into a proceeding under Section 145, Cr P.C. and when on receipt of the statements filed by the parties the learned S.D.M. found that the dispute is with regard to the right of passage through the disputed land, the proceeding was ultimately converted to a proceeding under Section 147, Cr PC. vide order dated 27.11.1995. The petitioner was arrayed as a first party while the Opposite parties been arrayed as second party.

(3.) It was the case of the petitioner first party that the land was. used as a path since long and the path was existent during the purchase of the adjoining land by the father of the petitioner in the year 1945. The vendor of the father of the petitioner also used the disputed land as path and it remains so for a long period. But, the same has been obstructed by the Opposite parties. On the other hand, the Opposite Parties took the plea that the land was never a path as alleged from the side of the petitioner with regard to the portion as mentioned as in Plot No. 1039 rather it was used as a Sahan of the Opposite parties and hence, there was no scope of any right of passage by any party through the proceeding land specially in respect of plot No. 1039. The Opposite parties are interested in respect of Plot No. 1039 alone. They have no interest in Plot No. 1038 but the persons who are owners of plot No. 1038 had not been made parties in the proceeding.