SARWAN Vs. PURILAL

JUDGEMENT

(1.) THIS reference comes on the report of the District Magistrate, Tonk, dated 29th March, 1961.

(2.) THE facts giving rise to it are that one Purilal Brahman resident of Shukalpura, filed an application in the Court of the Sub Divisional Magistrate, Tonk, Under Section 133, Cr, P. C. it was stated by him that he was taking his cattle to the pasture land through a plot Khasra No. 516, what was a public path, that the opposite parties, namely, Sarwan and Pratap had made encroachment on the public way by unlawful extension of their Baras and therefore it was prayed that proceedings should be taken against them and unlawful obstruction should be removed from the said public path, namely, Kharasa No. 516. On nth January 1961, the opposite parties presented a joint reply. It was pleaded by them that they had purchased the land in dispute from the Gram Panchayat and that they had not made any encroachment on the public path. After inquiry, the Sub Divisional Magistrate came to the conclusion that the opposite parties had encroached upon the land comprised in Khasra No. 516 and therefore on 30th January, 1961, he directed them to remove the encroachment within a week, failing which they would be liable to penalty provided by Section 188 IPC Aggrieved by this order dated 30-1-1961, the opposite parties filed a revision application in the court of the District Magistrate, Tonk. The learned Dist. Magistrate found that the Sub Divisional Magistrate had committed two mistakes. It is pointed out by him in his reference that the first mistake committed by the Sub Divisional Magistrate was that he did not take into consideration the Patta, which was produced by Sarwan and Pratap. The next mistake pointed out by him is that the Sub Divisional Magistrate proceeded Under Section 137 Or. P. C. without following the procedure laid down in Section 139-A, Cr. PC He has, therefore, recommended that the order of the Sub Divisional Magistrate dated 30th January, 1961, should be set aside and the case should be sent back to him to proceed in the matter according to law.

(3.) LEARNED Counsel for Purilal contests the correctness of this reference.