JAGAN NATH Vs. CHHITARMAL

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Jaipur District, Jaipur, on 10th March, 1973, with the recommendation that the orders passed by the Sub -Divisional Magistrate, Jaipur, on 21st January, 1972 and 24th October, 1972, may be set aside and the learned Magistrate may be directed to decide the matter afresh in accordance with law.

(2.) THE relevant facts giving rise to This reference may be shortly stated as follows: Jagan Nath, Shrinarain, Dhoolchand and Ganpat, petitioners, hereinafter referred to as party No. 1, presented an application Under Section 133, Cr.P.C. before the District Magistrate, Jaipur, in the month of August, 1968, that Chhitar Mal and Anandi Lal, hereinafter referred to as party No. 2 had unlawfully obstructed their way to a well situated in village Hirnoda by constructing a muddy wall and placing thorns over it and that the unlawful obstruction should be removed from there as the well had been continuously used by all the in habitants of the village for drawing drinking water there from since long. This application was transferred to the Sub -Divisional Magistrate, Sambhar, for necessary inquiry and report. The Sub -Divisional Magistrate, Sambhar, inspected the site on 25 -8 -1968 and made a conditional order on 28 -8 -1968 requiring patty No. 2 to remove such obstruction from the way to the well. While passing the conditional order the learned Sub -Divisional Magistrate took immediate measures to prevent injury to the public by issuing an injunction restraining party No. 1 from causing any obstruction to the way pending the determination of the matter. Later on, in pursuance of this order, the thorny fencing was removed with the help of police at the instance of the learned Magistrate on 29th August, 1968. Party No. 2 there upon moved the Additional District Magistrate and thereafter the Sessions Judge for transfer of these proceedings from the court of the learned Sub -Divisional Magistrate, Sambhar to any other court of competent jurisdiction. The case was transferred by the learned Sessions Judge to the court of the Sub -Divisional Magistrate, Jaipur before which party No. 2 denied the existence of the alleged public right of way to the well through the land in question. In support of its denial of the existence of the public right, party No. 2 produced a certified copy of the judgment and decree passed in its favour by the Civil Judge, Sambhar, on 3rd May, 1967, against the Gram Panchayat, Hirmda and some other persons of the village. Party No. 2. produced a certified copy of the judgment of the revenue court also to show that proceedings Under Section 91 of the Land Revenue Act were taken and dropped against them as the State was not found to be the owner. On the basis of these two documents, it was urged by party No. 2 that the proceedings Under Section 133, Cr.P.C. were ill -conceived and were not legally sustainable.

(3.) I have gone through the record and heard the arguments advanced by the learned Counsel appearing on behalf of parties Nos. 1 and 2. At the outset I may observe that as soon as the learned Magistrate arrived at a conclusion that the evidence in support of the denial of existence of public right of way was reliable, she ought to have stayed the proceedings until the matter of the existence of such a right had been decided by a competent civil court. Instead of staying the proceedings she adopted a wrong procedure by sending the file to the District Magistrate, Jaipur, for being forwarded to the civil court. The District Magistrate was not authorised under the law to forward this case to the civil court. Even the learned Sub -Divisional Magistrate herself was not required to send the record to civil court. In such a case, the proper order which she could persecution was to stay the proceedings until the decision of the matter of the existence of public right of way by a competent civil court. To This extent the order of the learned Sub -Divisional Magistrate, dated 21st January, 1972, was clearly wrong and could not be sustained in the eye of law.