TEJNARAIN SINGH Vs. JAGDEO SINGH

JUDGEMENT

(1.) This is an application in revision against an order made by a First Class Magistrate under Section 139A, Criminal P. C. On 16 March 1944, the members of the opposite party filed an application under Section 133, Criminal P. C, before the Sub-divisional Officer of Sitamarhi complaining that the petitioners caused obstruction to a public nala running through gairmazrua plots 229, 233, 297 and 623 in village Durahi Jagdish by filling up a portion of plot 297 and amalgamating it with their fields. The Sub-divisional Officer sent the application to the Sub- Inspector of Sheopur for enquiry. On receipt of the the Sub-Inspector's report, the Sub-divisional Officer passed on 21 April 1944 a conditional order under Section 133 and issued a notice calling upon the petitioners "to remove the obstruc tion caused to the nala and footpath or to show cause, if any, on 19 May 1944." The footpath referred to here was said to be on both sides of the nala. The petitioners appeared on the date fixed and showed cause. They denied the existence of a public nala and asserted that portions of the plots in question were in cultivating possession of different tenants including themselves for many years. On 6 April 1944 the Sub-divisional Officer transferred the case for disposrl to an Honorary Magistrate with first class power. The petitioners filed kobalas and bharna deeds in support of their claim and also examined a witness. The opposite party filed survey map and khatian. After hearing the parties, the Honorary Magistrate passed on 20 June 1944 an order under Section 139A in these terms : "I hold that the evidence of denial of the second party is not reliable. I hold that the nala is public one. I will now proceed under Section 137, Criminal P. C."

(2.) Against this order the present application is directed. Two points have been urged by Mr. Prem Lall for the petitioners. The first is that the Sub-divisional Officer, after cause was shown before him by the petitioners in obedience to the notice issued against them, had no power to transfer the case for disposal to some other Magistrate and, therefore, the order passed by the Honorary Magistrate under Section 139A is without jurisdiction. This agreement is sought to be based on the provisions of S Section 133 and 139A. The relevant provision of Section 133 is in these words: Such Magistrate may make a conditional order requiring the person causing such obstruction ... to appear before himself or some other Magistrate of the first or second class at a time and a place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.

(3.) Section 189A (1) runs as follows: Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel. or place, the Magistrate shall", on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, enquire into the matter.