ABDUL WAHID KHAN Vs. ABDULLAH KHAN

JUDGEMENT

(1.) The facts which have led up to this reference are set out in the order of my learned colleague and I need not repeat them.

(2.) The recommendation of the Sessions Judge is based upon two grounds:--(1) that the Magistrate should have stayed his hand and should have referred the parties to the civil court when he found that a bond fide and substantial dispute as to title had been raised between the parties; and (2) that on the merits the order of the Magistrate was not a proper order inasmuch as it had not been proved that the way in question was a public way. As to the first of these grounds, we are both agreed that the Magistrate's order cannot be discharged because he failed to send the parties to the civil court. The ruling in Emperor V/s. Dost Muhammad (1905) I.L.R. 28 All. 98 cannot be accepted as a correct exposition of the law.

(3.) On the merits, however, I am of opinion that the Magistrate's order is not proper, and I would, therefore, accept the recommendation of the learned Sessions Judge.