CHHITAR Vs. CHHOGA

JUDGEMENT

(1.) AGAINST the order of the learned Sessions Judge, Ajmer, dated December 2, 1970 Chhitar and four others have come up in revision before me in a proceeding under Section 133, Code of Criminal Procedure.

(2.) THE applicants before me had filed an application against the opposite parties Chhoga and some others under Sectiop 133 of the Code of Criminal Procedure, in the Court of the Sub Divisional Magistrate, Ajmer. Their grievance was that there is a Budh Sagar Tank bearing No. 118 which is a Government tank in village Bagsuri which served to irrigate nearly 2000 Bighas of land in villages Bagsuri, Laxmipura and Budhpura. The tank accumulated the rain water from the hillocks of Banevara through a natural water course CBala' ). The opposite parties of village Banevara raised a mud wall and also constructed a 'pucca' wall in the bed of the 'bala' with a view to appropriate the rain water. The applicants contended that the said obstruction starved the Budh Sagar Tank which occasioned considerable loss to the cultivators of the villages mentioned above. The learned Sub Divisional Magistrate registered a case under Section 133 of the Code of Criminal Procedure on July 28, 1966 and passed a conditional order thereunder for the removal of the obstruction or nuisance mentioned above. A show cause notice was given along with a copy of conditional order to the opposite parties who challenged the conditional order and filed their reply on March 26, 1968. They denied the existence of any public right in respect of the water course and questioned the legality of the conditional order. The opposite parties, however, failed to produce any evidence under Section 139-A of the Code of Criminal Procedure, in support of their contention and in fact, they failed to appear before the Court on September 27, 1969. In their absence ex parte proceedings were started and since there was no evidence in support of the denial the procedure under Section 137, Code of Criminal Procedure, was followed by the learned Magistrate. After considering the affidavits produced by the applicants in support of their application, the learned Sub-Divisional Magistrate concluded that evidence adduced by the applicants in support of their claim was insufficient and he accordingly vacated the conditional order. A revision application was filed' before the learned Sessions Judge who observed that the Sub-Divisional Magistrate was not justified in concluding that the affidavits put in by the applicants were vague, and merely because the wall had been broken at some places it was wrong to say that the entire obstruction had been removed. The learned Sessions Judge after examining the two reasons given by the learned Sub-Divisional Magistrate namely, (1) that no objection was raised by the applicants for three years and (2) the resultant presumption was that there was no public right over it, the learned Judge came to the conclusion that this long delay showed that it was not a case of urgency or imminent danger and as such, no proceedings under Section 133 Code of Criminal Procedure were justified and he-accordingly dismissed the revision application. The applicants are dissatisfied and they are before me.

(3.) APART from the affidavits produced' by the applicants there is the "ghatna Bahi Patwari" the certified copy whereof has been produced by the applicants and, in my opinion, this is a valuable document giving the genesis of the trouble. Broadly translated1 this document records that "on 7-2-1963 in village Banevara the people had gathered. In Khasra No. 1018 which is the Government land, there was a 'nala' which flows through it. The villagers commenced the work of obstructing this 'nala' and the Patwari called Numberdars of the Village Raju and Bherusingh of the village and Juwara Panch at the site and enquired about the construction on this nala. The answer given by the villagers was that they had decided to obstruct the nala in their pleasure and that they had not taken any permission from the Government in this behalf, and when the Patwari asked them to sign over the proceedings of the Ghatna Bahi they declined to oblige him. The learned Sub-Divisional Magistrate has relied upon this document to show that the construction was commenced in the month of February, 1963. The application under Section 133, Criminal Procedure Code was made on July 25, 1966 and as I have already noticed, the conditional order was passed (in July 28, 1966. The question on which I have to focus my attention succinctly stated is: whether a delay of little over three years in making the application under Section 133, Criminal Procedure Code disentitled the applicants to the relief claimed by them?