RAM SAHAI Vs. UTTAMA DEBI

JUDGEMENT

(1.) Tins is an application m revision by Ram Sahai and others against an order passed by a Magistrate under Section 139(a), Criminal P.C., and confirmed by the learned Sessions Judge.

(2.) The facts may be briefly stated. One Srimati Uttama Debi, wife of Chaudhari Raghubir Narain Singh, is the owner of a kothi No. 5133 called the "Aziz Manzil" situate on the western Kutcherry Road in Meerut. After she had acquired this property one Bulaqi applied under Section 133, Criminal P.C., against one Ratan Lal, said to be a karinda of Srimati Uttama Debi, (it is however alleged before me by counsel for Srimati Uttama Debi that Ratan Lal is not her karinda but the karinda of her husband) for the removal of a pucca wall erected by Ratan Lal across a certain path which was alleged to be a public path in which the public had a right of way. It might be mentioned here that Srimati Uttama Debi was not a party to these proceedings. Notices of those proceedings were served on Ratan Lal by affixation and the learned Magistrate on 8 June 1932, passed an ex parte order ordering the demolition of the wall. The wall was subsequently demolished. In July 1933, a kachha wall was erected and the path was again obstructed with the result that an application was filed by eleven persons, under Section 133, Criminal P.C., against Chaudhari Raghubir Narain Singh. Once again notice was served on Chaudhari Raghubir Narain Singh, by affixation and on 18 July 1933, the Joint Magistrate ordered the wall to be demolished and the way to be opened. This order was carried out on 19 July 1933. Some time afterwards Srimati Uttama Debi petitioned the Magistrate that she was the owner of the kothi and she had no knowledge of the above proceedings and therefore the proceedings might be revived. The learned Magistrate re-opened the case on 7 August 1933, and the matter was referred to arbitration but the arbitration proved infructuous.

(3.) In 1934 the path was again blocked and this time it was blocked by certain brambles. The applicants before me applied to a Magistrate for taking proceedings under Section 133, Criminal P.C., against Srimati Uttama Debi, Chaudhari Raghubir Narain Singh and Ratan Lal. Srimati Uttama Debi in pursuance of the notice issued to her filed a statement and denied the existence of a right of way. The learned Magistrate commenced an enquiry on such denial under Section 139 (a), Criminal P.C., And came to the conclusion that there was reliable evidence in support, of the denial. He therefore stayed the proceedings until the matter of the existence of such right was decided by a competent civil Court. He went a step further and directed: the applicant to proceed to obtain a declaration from the competent civil Court that there is a, public right of way from the Western Kutcherry Road through the compound of kothi "Aziz Manzil" past the out-houses alongside Bulaqi's disused well across fields beyond this well to the west to join up with the recently constructed road to Rao Bahadur Girraj Singh's new house from the Roorkee Road, as shown in the plan filed by the applicant.