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PATNA HIGH COURT
S.H.S.Abidi and . JJ.
Shambhu Choudhary
Versus
Rajendra Prasad
Criminal Revision No. 704 of 1989 ;
Decided On : MAY 27, 1991
The court held that the Magistrate did not commit any procedural irregularity in not questioning the opposite party about the existence of the public right, as the opposite party had filed a written statement denying the existence of the public right. The court also held that the Magistrate had complied with the provisions of Section 137(2) of the Code of Criminal Procedure by considering the evidence led by the opposite party and finding that it was not reliable. The court further held that the Magistrate had not decided the question of title to the land, but had only found that the evidence produced by the opposite party was not reliable. The court upheld the impugned order passed by the Magistrate and dismissed the revision application.
Fact of the Case:
The petitioner, Shambhu Choudhary, filed a revision application against the order of the learned Magistrate, Danapur, who had ordered the removal of obstruction caused by the petitioner by constructing rooms on plot No.493 which the 1st party claimed to be a chat (flank) of the District Board Road (Zila Parishad Read) which runs from north to south. The petitioner contended that as the settlement had been made by the Junior Engineer after making inquiries, so there is no encroachment. As the chat is private property of the District Board then the onus is on the 1st party to prove that it is the public property. Further, as Sec.139 of the Code is in the negative form, so the onus is on the 1st party to prove that this is a public place and under Sections 101 and 102 of the Evidence Act, negatives are not proved and only positives are proved and the court below has conveniently ignored the reliable evidence lead by the 2nd party. Next, it was contended that the learned Magistrate had got the report of the Anchal Adhikari under Sec.139-A of the Code yet the court had not considered the said aspect. It was also urged that without the compliance of the provisions of Sec.137 (old 139-A), the learned Magistrate could not pass orders under Sec.138 (old 137) of the code and as such, order is bad and illegal.
Finding of the Court:
The court held that the Magistrate did not commit any procedural irregularity in not questioning the opposite party about the existence of the public right, as the opposite party had filed a written statement denying the existence of the public right. The court also held that the Magistrate had complied with the provisions of Section 137(2) of the Code of Criminal Procedure by considering the evidence led by the opposite party and finding that it was not reliable. The court further held that the Magistrate had not decided the question of title to the land, but had only found that the evidence produced by the opposite party was not reliable.
Issues: 1. Whether the Magistrate committed any procedural irregularity in not questioning the opposite party about the existence of the public right? 2. Whether the Magistrate complied with the provisions of Section 137(2) of the Code of Criminal Procedure? 3. Whether the Magistrate decided the question of title to the land?
Ratio Decidendi: 1. The court held that the Magistrate did not commit any procedural irregularity in not questioning the opposite party about the existence of the public right, as the opposite party had filed a written statement denying the existence of the public right. The court relied on the case of Rajanikanta Roy V/s. Ebrahim Sarker, AIR 1929 Cal 507, in which it was held that the failure to question under Sec.139-A is an irregularity not effect in the merits and the High Court will not interfere in revision. 2. The court held that the Magistrate had complied with the provisions of Section 137(2) of the Code of Criminal Procedure by considering the evidence led by the opposite party and finding that it was not reliable. The court relied on the case of Jai Ram Singh V/s. Bhuley, AIR 1963 Alld 27, in which it was held that the Magistrate is only to consider the evidence solely from the point of view of the person who produces it and find whether the evidence considered ex parte is genuine and tends prima fade to support the existence of the private right or the non-existence of any public right as urged by the party. 3. The court held that the Magistrate had not decided the question of title to the land, but had only found that the evidence produced by the opposite party was not reliable. The court relied on the case of L. Janardan Samp V/s. Emperor, AIR 1937 Alld 12, in which it was held that reliable evidence means evidence on which it is possible for a competent court to place reliance and it does not mean evidence which definitely establishes the title to the land.
Final Decision: The court upheld the impugned order passed by the Magistrate and dismissed the revision application.
S. H. S. Abidi, J.
1. Shambhu Choudhary 2nd party petitioner has filed this revision against the order dated 12-9-1989 passed by the learned Executive magistrate, Danapur who had ordered the 2nd party, Shambhu Choudhary, ramesh Chaudhari Birbal Mian and Ayub Mian to remove the obstruction caused by them by constructing rooms on plot No.493 which the 1st party claimed to be a chat (flank) of the District Board Road (Zila Parishad Read)which runs from north to south.
2. It appears that on 3-4-1988, an application had been filed by rajendra Prasad, 1st party before the Anchal Adhikari for removing the encroachments on the said chat. Later on, on 1-6-1988, he filed petition under Sec.133 of the Code of Criminal Procedure (hereinafter referred to as the Code) saying that his house stands on plot No.488 and Niksar (exit) of the petitioners house is towards the south-west. The chat on the zila Parishad Road running north to south is being used not only by the petitioner but also by the villagers as Rasta for going to the Zila Parishad road. The 2nd party Shambhu Choudhary has constructed a shop in front of the house of the 1st party obstructing the Rasta by encroaching upon the road also. When the 2nd party was requested against such high-handness he got energy and chased the 1st party to assault and so, the petitioner had filed that petition under Sec.133 of the Code.
3. On this application, the same day the learned Executive Magistrate called for a report from the Anchal Adhikari, Naubatpur fixing 27-6-1988. In the meantime, show cause was also asked for from Shambhu Chaudhary and another, the second party in that proceeding. After several dates, the 2nd party appeared on 12-7-1988. He filed show cause on 11-8-1988 denying any obstruction, and said that Shambhu Choudhary (petitioner) is the son of mostt. Daulati Devi, sister of Kishan Choudhary who was in possession of the land in question. She in order to avoid any further complication, applied to the District Board authorities to settle the with her on which the authorities of the Zila Parishad directed a Junior Engineer of its department to made an enquiry who, on enquiry, reported that there will be no obstruction in coming and going to the public on road. On the basis of the said report (Annexure 1 ). Zila Parishad settled the plot of land measuring 25x10 with Mosstt. Daulati Devi at the rate of 33 paise per sq. ft. per month and issued a settlement letter (Annexure-2 ). It was after the settlement that she made construction over the land containing three rooms and left the portion of the land towards west of the rooms to be used as passage and is living there since its construction. It was also said that the Zila Parishad was not impleaded as a party and so any order or direction against Zila Parishad was not binding.
4. On 20-7-1988, both parties appeared. Report of the Anchal Adhikari was not received, though the report from the Zila Parishad was received. The Magistrate ordered the case to be put before Sub-Divisional Magistrate, danapur The Snb-divisional Magistrate heard both the parties on 19-8-1988 and passed a detailed order after dealing with the case of the 2nd party and also considering the reports of the Junior Engineer of Zila Parishad and the anchal Adhikari. He therefore, directed for starting proceedings under section 133 Cr. P. C. and for sending the record to the Executive Magistrate who alone was competent to decide the case. The second party was also directed to file his show cause.
5. The case went back to the Executive Magistrate on 29-11-1988. The 2nd party filed show cause on 4-8-1988. On several dates witnesses were examined in support of denial of public right be sides filing certain documents surajdeo Prasad, A. W.1 has said that the land had been allotted to shambhu Chaudhary by the Zila Parishad. He was seeing his shop since 1948 Towards west is the house of Rajendra Pd.1st party. Chat is 10 wide and that through this chat, the people of t
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