DARWARA SINGH Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) This miscellaneous petition is directed against the order dated April 12, 1989, passed by the District & Sessions Judge, Sri Ganganagar, by which the learned Sessions Judge dismissed the the Revision petition filed by the petitioner.

(2.) Pyara Singh and Darwara Singh Sons of Shri Thakur Singh filed an application under Sec. 133 of the Code of Criminal Procedure in the Court of the Sub-Divisional Magistrate, Sri Ganganagar, against Dhara Singh, Dalbeer Singh, Kulwant Singh, Gurmit Singh and Manjit Singh mentioning therein that is a public way of about 40 wide situated between Aahata No. 15 and 38 in village 1-H Chhoti, tehsil Sri Ganganagar. This is a sanctioned way and is situated between the two plots of the applicants. The non-applicants, on Dec. 15, 1985. made obstructions in this public way and constructed a wall, measuring 100* x 25. It was further mentioned that the applicants are living in plot No. 30 and the non applicants are not allowing them or their cattle to pass through that way as they have obstructed the public way. It was, therefore, prayed that the proceedings under Sec. 133 Cr. P.C. may be initiated against the non-applicants and they may be directed to remove this obstruction, which has been made by them on a public way and has caused a nuisance to the public at large. The learned Magistrate, treating the case of the applicants under Sec. 133, Cr. P C., passed a conditional order and issued notices to the non-applicants requiring them to remove the obstruction created by them and to open the way for public use and if they have any objection then they may appear before the Court on Jan. 8. 1986 and may file objections, if any. The non-applicants appeared before the learned Sub-Divisional Magistrate and filed their objections on Jan. 8, 1986, mentioning therein that they purchased the land, situated in between plots No. 13 and 32 on Jan. 12, 1969, measuring 200 x 40 in the auction proceedings, from the Gram Panchayat itself and in these auction proceedings, the applicants were, also, present. The non-applicants are the owners of plots No. 31 & 32 which are adjacent to the plot in question and they have already constructed a Pacca Kotha over this land. This land was never used as a public way but actually this land was being used by the non-applicants or their personal use and they have purchased this land from the Gram Panchayat in an open auction in the year 1969 and the construction over this plot of land has been made by the non-applicants on their own land which they purchased from the Gram Panchayat. The non-applicants placed on record the copy of the PATTA dated May 25, 1969, issued by the Gram Panchayat. It was, also, mentioned in the reply that the applicants, aggrieved of the auction of the land in favour of the non-applicants, preferred a revision petition before the District Collector, Sri Ganganagar, which was decided by the learned Collector on merits and by his order dated July 28,1987, he dismissed the revision petition filed by the applicants. The non-applicants, also, placed on record certified copy of this order. The learned Magistrate, thereafter, heard the counsel for the parties and came to the conclusion that the non-applicants have produced some reliable evidence in support of their denial and it is not a case of a public way and is not covered by Sec. 133 Crimial P.C. The learned Magistrate, also, came to the conclusion that the applicants have not come before the Court with clean hands. The map, produced by the applicants along with the application, is, also, not correct. He, therefore, was of the opinion that the case is not covered by Sec. 133 Crimial P.C. and as such cancelled the order and consigned the proceedings to the record. Dissatisfied with the order dated July 7,1988, passed by the learned Sub-Divisional Magistrate, Sri Ganganagar the applicants preferred a revision petition before the learned Sessions Judge, Sri Ganganagar, who by his order dated April 12,1989, dismissed the revision petition filed by the applicants. It is against this order that the present miscellaneous petition has been filed.

(3.) Heard learned counsel for the petitioner and the learned counsel for the non-petitioners as well as the learned Public Prosecutor.