DARWARA SINGH Vs. STATE OF RAJASTHAN AND ANR

JUDGEMENT

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

(2.) Pyara Singh and Darwara Singh sons of Shri Thakur Singh filed an application under Section 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 there in that there is a public way of about 40' wide situated between Aahata Nos. 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 December 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 Section 133 Cr. PC 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 Section 133, Cr. PC, 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 January 1, 1986 and may file objections, if any. The non-applicants appeared before the learned Sub-Divisional Magistrate and filed their objections on January 8, 1986, mentioning there in that they have purchased the land, situated in between plots No. 13 and 32 on January 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 and 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 for 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, issused 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, 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 Section 133 Cr. PC. 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 alongwith the application, is, also, not correct. He therefore, was of the opinion that the case is not covered by Section 133 Cr. PC and as such, cancelled the order and consigned the proceeding 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.) It is contended on behalf of the applicant-petitioner that the learned lower Court committed an error in cancelling the conditional order passed by the Sub-Divisional Magistrate as there was sufficient evidence on record, from which it would appear that there was public way and the non-applicants have obstructed that way and, therefore, the learned lower Court should have ordered for the opening of the public way instead of dismissing the revision petition filed by the petitioner. It was, further, argued that the learned Magistrate has dropped the proceedings, which he could not have done and as per the law, he should have stayed the proceedings. In support of this contention, he has placed reliance over : Thakur Kaliyan Singh v. The Slate of Rajasthan,1954 RajLW 704, Shaman Kumar v. Puri,1961 RajLW 631 and Ganga Ram v. The State of Rajasthan,1969 RajLW 334. The learned Counsel for the non- applicants, as well as the learned Public Prosecutor, have supported the order passed by the learned lower Court.