DURGA Vs. MUKNA

JUDGEMENT

(1.) THE proceeding started on a complaint by Mukna, Bhanwarlal and certain other persons in the court of First Class Magistrate, Jodhpur, alleging that Durga Mangilal and certain other persons mentioned in the petition had obstructed a public road leading from Nagori Bera, Nandor to the main road between Jodhpur and Nagaur. It was alleged that this public way lay by the side of the house of Bhanwarlal, but he and certain other persons mentioned in the application had tried to construct Baras and thereby obstructed the road. THE Magistrate sent the complaint to the police and the police gave a report that there was an apprehension of the breach of the peace as well. THE Magistrate took proceedings under Sep. 133 of the Criminal Procedure Code and after recording oral and documentary evidence, directed that the opposite parties to remove the obstruction which they had made by construction of the Baras. Durga and others filed a revision which was dismissed by the learned Sessions Judge and they have now come to this court.

(2.) LEARNED counsel for the petitioners contended that the Baras were of long standing and there was a good way connecting the Nagori Bera with the Nagaur Road, even so much that two trucks could pass side by side and that the petitioners Durga and others had also spent some money in levelling that way for the convenience of the public and that the order directing them to remove the Baras should be discharged. The finding of the learned Magistrate is that there was formerly a public way coming from Nagori Bera passing adjacent to the Patta Shud house of Durga meeting the Jodhpur Nagaur Road. This was obstructed by the construction of Baras; but these gentlemen improvised another road to the south of the old public way through which traffic could pass. According to the Development Officer Mohanlal, the road was intended; to be 80' wide at this place, which would include the old public way, but would exclude a portion of the improvised way. The Magistrate was of opinion that Durga were not justified in obstructing the old way so as to benefit themselves and that they should be directed to remove the obstruction and it was immaterial that the said persons had tried to carve out another way for the public.