HAMIR KHAN Vs. JASWANT SINGH

JUDGEMENT

(1.) THE City Magistrate, Udaipur, initiated proceedings under S. 147 Cr. P. C. , on the police report, dated August 16, 1966. Party No. 1 Jaswant Singh, a resident of Jadion-ki-Ol, claimed a right of way to his house situate behind Naga Magri Mosque, Udaipur. through a plot of land, belonging to party No. 2, comprising Hamir Khan and Himmat Khan, residents of Lalghat, Udaipur. THE City Magistrate issued notices to both the parties and proceeded to inquire into the matter. THE house, to which the right of way was claimed, admittedly belongs to Mst. Sohan Bai, mother of Jaswant Singh. While the proceedings under S. 147 Cr. P. C. were afoot, Mst. Sohan Bai filed a civil suit in May, 1967, in the Court of the Munsif, Udaipur, for declaration and permanent 'injunction' in relation to the right of way in respect of which criminal proceedings were pending. In the civil suit the plaintiff prayed for an interim injunction, which was granted on May 3, 1967. That injunction still subsists. THE proceedings in the civil suit ace continuing and the evidence ofthe parties is being recorded. Hamir Khan and Himmat Khan submitted to the criminal court about the pendency of the civil suit between the parties regarding the right of way and prayed for dropping the proceeding under S. 147, Cr. P. C. THE criminar court paid no heed to it. It continued its inquiry and ultimately issued an order on November 29, 1968, directing party No. 2 to remove barbed wire fencing, which was impinging on the way to party No. l's residence. Hamir Khan and Himmat Khan filed a revision application against the above order in the Court of Sessions Judge, Udaipur. THE said Judge dismissed the revision petition in limine on December 11, 1968.

(2.) AGGRIEVED against the above order, party No. 2 has filed this revision petition. Contention of learned counsel for the petitioners is that the City Magistrate's court had had no jurisdiction to pass a positive order for the removal of the fencing. An order of the nature, counsel adds, is beyond the scope of the provisions of S. 147 (2), Cr. P. C.