P L D 1963 (W (PLP)

This Criminal Reference dated 18th April 1963, is made by the learned Sessions Judge, Campbellpur, recommending that the order of the trial Magistrate dated 16th February 1963, m king the notice issued on 18th September 1962, under section 133, Cr. P. C., absolute and ordering Nawab Khan etc., to clear the obstruction and making the passage open for the public, be quashed.

2. Briefly, the facts of the case as narrated at the trial are that Ahmad Khan son of Fateh Khan and others made an application under section 133, Cr. P. C., that a public right of way on Khasra No. 33 situate in the area of village Kamrial had been obstructed by Nawab Khan etc.

3. The trial Magistrate, after recording the preliminary evidence, issued a notice on 18th September 1962, under section 133, Cr. P. C. to Nawab Khan etc., calling upon them to remove the obstruction by 8th October 1962, or to show cause against the removal of the obstruction. Nawab Khan etc., who appeared in Court, resisted the application and denied the existence of any public path over Khasra No. 33.

4. After recording the evidence produced by the parties, the trial Magistrate mainly depended on the statement of the Patwari and the documents produced by him and came to the conclusion that there was a public path running through Khasra No. 1857 situate in village Kamrial, which passed through Khasra Nos. 31 and 32 as recorded in the revenue papers. However, the Revenue Record did not show that a path passed through Khasra No. 33 situate in Dhok Qazi which is ghair mumkin pari The trial Magistrate, therefore, concluded :‑ "One cannot escape the presumption that if Khasra No. 33 has certified passages touching on the opposite sides of the area, then the connection must pass through these khasra numbers especially when the bulk of it is rock and is incapable of cultivation. Moreover, it appears from the Revenue Records that this khasra number is jointly owned by Habib Khan and Mst. Chaini etc., and Nawab respondent is only a co‑sharer. I fail to understand why only Nawab should cause obstruction while other co‑sharers are not doing so, on the plea that Khasra No. 33 belongs to him and he cannot allow others to pass through it." In view of his above‑mentioned finding, he made the notice absolute by his order dated 16th February 1963.

5. After carefully going through the record and hearing the learned counsel for the petitioners and the learned Additional Advocate‑General, I am of the opinion that there is some force in the reference as the finding of the trial Magistrate is based on assumptions and is not supported by the material on the record. There is no entry in the Revenue Record to show that there is a path in Khasra No. 33 as claimed by Ahmad Khan etc., which is also clear from the statement of Patwari circle Kamrial. The oral evidence adduced by the parties was disbelieved by the trial Magistrate, and so it follows that there is no evidence on the record to support his observations. The procedure laid down under section 139‑A, Cr. P. C., where existence of public right is denied is :‑ "(1) 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, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court ; and, if he finds that there is no such evidence, he shall proceed as laid down in section 137 or section 138, as the case may require . . . ."

6. From the record it is clear that there is sufficient evidence in support of the denial. A Magistrate while deciding a case under Chapter X, Cr. P. C., is not competent to decide the question of title. Under the provisions of section 139‑A, it is his duty merely to see that any claim to a piece of land alleged to be a public place or a public way is not frivolous and is bona fide. Question of title is not intended to be decided in a summary proceeding by a Magistrate in a Criminal Court. I think "reliable evidence" in the sense in which the term is used in section 139‑A means evidence on which it is possible for a competent Court to place reliance. It does not mean evidence which definitely establishes the title to the land because if that was the meaning of the term it would be unnecessary in any case to refer the matter to the Civil Court at all. It was obviously the intention of the legislature that questions of title should not be decided in a summary proceeding by a Magistrate in a Criminal Court.

7. In view of the facts discussed above, the order of the trial Magistrate cannot stand. I, therefore, accept the reference, set aside the order of the trial Magistrate and vacate the order dated 16th February 1963, whereby the notice dated 18th September, 1962, was made absolute. K. B. A. Reference accepted.