MAHABIRPRASAD BHAGWANDIN Vs. PITAMBERPRASAD BRAHMINS

JUDGEMENT

(1.) THIS casa arises on a reference made under Section 438, Criminal P. C., by the Sessions Judge, Chhindwara, recommending the reversal of an order passed by the Magistrate, First Glass, Chhindwara, in a proceeding under Section 133, Criminal P. C.

(2.) ON 13th August 1932, Pitamber Prasad and ten others lodged a complaint in the Court of the Magistrate, First Class, Chhindwara, against Mahabir Prasad and two others, stating that the latter party had caused unlawful obstruction to a public road passing through Khasra No, 238/4 by erecting a wire-fencing across it, and prayed for the removal of the said obstruction. The Magistrate passed a conditional order under Section 133, Criminal P. C., on 19th August 1932, requiring the persons against whom the complaint was made to remove the wire-fencing from the road within a week or to show cause. They appeared in Court and filed a written statement on 27th August 1932 in which they admitted the erection of wire-fencing, but denied that there was any road passing through Khasra No. 238/4 or that the public had acquired any right of user. The learned Magistrate considered the evidence produced by either side and came to the conclusion that the public had acquired a right over the strip of land alleged to be the road and made his conditional order for the removal of the wire-fencing absolute on 12th January 1933.

(3.) IT appears that Section 139(a) escaped the attention of the learned Magistrate altogether. In his order the learned Magistrate states the result of the examination of documentary evidence in these words : The documents filed show that the land which has been fenced by the non-applicants is recorded In their names. Except in the Khasra and copy of the map filed by the applicants (these are recent documents) the jamabandi and the map prepared at the time of the settlement the road in dispute has not been shown in the Government records. The map dated 8th December 1926 filed by the applicants shows the existence of the road; while the sale deed filed by the non-applicants and which is dated 11th August 1912 makes no mention of this road, So far as the documentary evidence goes it is clear that the road did not exist or at least it was not recorded in the year 1915-16 when the settlement of this district was completed. It was after this that the road came into existence.