RAGHUBANS DAS Vs. EMPEROR

JUDGEMENT

(1.) This is a petition in revision for the quashing of proceedings under Section 138, Criminal P.C. which are pending in the Court, of the Sub-Divisional Magistrate of Hajipur.

(2.) The proceedings relate to survey plot No. 3459 in mauza Balgaon Chandpura Buzrug. The plot is described in the proceeding as a public path, and the petitioner has been directed to remove certain encroachments therefrom said to have been made by digging pits in the land. It is urged that the proceeding is bad ab initio for for want of jurisdiction, on the ground that a previous proceeding for the same purpose and relating to the same plot was stayed by an order udder Section 139A, Criminal P.C.

(3.) The order under Section 139A was passed on the 8-11-1944, by the predecessor-in-office of the present Sub-Divisional Magistrate. It notes that the land in question has been recorded in the settlement khatian as uncultivated land forming the mafi brit of the petitioner, and that there is nothing to conclude that any portion of it is used as a road. After referring to the khatian, the Sub- Divisional Magistrate concluded: Thus it shows that opposite party has prima facie-claim over this plot as his uncultivated land, may it be used by him as a road or like that, and such no further steps should be taken in the proceeding till it be decided by civil Court as required by Section 139A(2). This was a perfectly competent order the provisions of Section 139A, Sub-section (2), and properly referred the parties to get the matter decided by the civil Court. In spite of this, on the 7-1-1945, the opposite party Saukhi Lal Rai, applied again for proceedings under Section 133 in respect of this plot. This application was rejected by the then Sub Divisional Magistrate who regarded it as being "an out come of old enmity."