JADUNANDAN LAL Vs. RAMPEYARE SAO

JUDGEMENT

(1.) This is an application on behalf of the first party against a final order passed under Section 133, Criminal P.C. Two kinds of obstructions were alleged to have been made in Plot No. 777 by the second party, who are the owners of a contiguous Plot No. 760. The first obstruction was a staircase. This has been ordered to be removed upon the finding that this was a recent obstruction, so that the petitioner has now no grievance on this score.

(2.) The second obstruction alleged was by putting up of a compound wall. The Courts belOw did not accept the case of the opposite party that this particular compound wall had been in existence for 30 or 35 years and held that this was a recent construction. They, however, refused to pass an order in favour of the first party for the removal of this recent construction by the second party on the ground that the public have acquiesced in the construction of the verandah for a number of years and the compound wall being merely an extension of that verandah cannot possibly cause any inconvenience to the villagers so as to amount to a public nuisance. I am of opinion that this way of looking at the question at issue was erroneous. It has been pointed out in Jagroshan Bharti v. Madan Pande A.I.R. 1927 Pat. 265 that all that the Courts have to see is whether the encroachment has in fact been made upon a public place and not that the encroachment causes or does not cause any inconvenience to the public.

(3.) But it was argued on behalf of the opposite party that Section 133, Criminal P.C., should not be applied to long-standing obstructions but only to unlawful obstructions recently built in a public place. Reliance was placed upon the case in Emperor V/s. Tulsi Ram A.I.R. 1938 Lah. 523 where the learned Chief Justice observed that Section 133 was not intended for long-standing obstructions but only for unlawful obstructions lately built in a public place, and it was only on such proof that action under Section 133 can be taken, and that the provisions of Section 133 should not be allowed to be used as a substitute for litigation in civil Courts. The judgment in that case does not show whether the attention of the learned Chief Justice was drawn to the provisions, of Section 139A, Criminal P.C. Those provisions were lately introduced into the Code in order to obviate the consideration of the questions such as those which arise in the present case at a late stage of the inquiry. The argument of the opposite party before me is that the second party has acquired by adverse possession a right to put up his building upon Plot No. 777. In other words, he claims that by adverse possession the public have lost their right to use plot No. 777 as public place. Now, if this was so, the obvious remedy of the opposite party was to deny the existence of any public right in respect of this plot in a proceeding under Section 139A. By Sub-clause (2) to that section, it is enjoined that if on inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil Court. If, on the other hand, he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the ease may require. Sub-clause (3) again emphasises that a person who has failed to deny the existence of a public right or who having made such denial has failed to adduce reliable evidence in support thereof, shall not, in the subsequent proceedings, be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury.