ORDER :

Heard learned counsel for the petitioner and the learned APP for the State.

2. The present petition has been preferred for setting aside the order dated 02.12.2022 passed by the learned Additional Sessions Judge, VIIIth, Saran at Chapra in Cr. Revision No.105 of 2022 by the opposite party no.2, by which the order dated 30.03.2022 passed by the learned Sub-Divisional Magistrate, Sadar, Saran at Chapra in Case No.996 of 2021 under Section 133 of the Cr.P.C. was interfered with.

3. The facts of the case is/are as follows:

(i) the O.P. No.4, Ram Pukar Prasad on 10.06.2021 filed an application under Section 133(A) Code of Criminal Procedure for removal of obstruction from the passage urgently stating there in that both the petitioner and O.P. Nos.4 and 5 are agnates and have houses with opening of the door at eastern direction having 10”x80” long passage which connects the main road running from East to West;

(ii) the petitioner had earlier tried to get permanent injunction for the aforesaid passage in Title suit no.110/2018 before the learned court of Munsif-IV, Saran at Chapraand had preferred application for grant of temporary injunction in the said Title suit but the same was rejected vide an order dated 16.11.2018 and against the order of rejection, he preferred Miscellaneous Appeal which was pending as M.A. No.19 of 2020;

(iii) the petitioner obstructed the passage in such away that only two feet land has been left by him out of 10 feet land and for removal of that obstruction, the O.P. No.4 filed the instant application being case no.996 of 2021.

4. The case of the petitioner is that the land in question is his exclusive property that cannot be used for ‘Raasta’ (passage). Further, his agnates have access to their house on the west side with the road and thus cannot say that they have no access to road.

5. The petitioner further submitted that Title suit no.110 of 2018 was filed by the petitioner against O.P. No.4 & others which is pending before the court of learned Munsif, IVth, Saran at Chapra for grant of permanent injunction on the land bearing Khata No.399 Survey Plot No.719 and Khata No.381, Survey Plot No.896, 724 & 723 Area-10 Feet x 80 Feet.

6. Further, the application filed by the petitioner under order 39 rule 1 for grant of temporary injunction in regard to land in dispute was dismissed by the learned court vide an order dated 16.11.2018 passed in the said Title suit on the technical ground that indirect relief cannot be granted which takes place of direct relief.

7. It has been submitted by the learned counsel that pursuant to the application preferred by the opposite party no.4, namely, Ram Pukar Prasad, the petitioner was noticed. Accordingly, he filed reply/written objection/show-cause stating therein that land in question (80 feet x 10 feet) on the eastern side of his house is his own land and cannot be allowed for a common passage.

8. The further contention was that during the partition, the land had fallen in the share of the petitioner but the opposite party no.4 wants its dispossession and the petitioner having no option had to file Title Suit No.110 of 2018 for permanent injunction before the court of learned Munsiff, IVth, Saran at Chapra which is pending.

9. The further contention was that opening of all the houses including that of the petitioner and the opposite parties are on the west side having connectivity with the road.

10. Having gone through the contention of both the parties, an inquiry was conducted by the learned S.D.M., Chapra from the concerned police station as also the Circle Officer. Accordingly, they submitted report stating that the land in question is disputed one falling under Khata No.399 and 381, Survey Plot No.719, 838, 724, 723 which is/are used by all the agnates as also local people for visiting the temple of Goddess ‘Kali’.

11. The learned Sub-Divisional Magistrate, Sadar, Saran at Chapra thereafter vide an order dated 30.03.2022 recorded the report of the Circle Officer, Manjh