H.C. Mishra, J.

Heard learned counsel for the first party petitioners and the learned counsel for the State, as also learned counsel for the second party opposite parties.

2. The first party petitioners are aggrieved by the order dated 23.7.2012/2.8.2012 passed by the learned Sub-Divisional Magistrate, Dhanbad, in M.P. Case No. 321 of 2011, in a proceeding under section 133 of the Cr. P.C., whereby in the application filed by the first party for removing of the obstruction erected by the second party on the way claimed to be used by the general public, it has been held that the general public had alternative way for use, and the way in question was not shown as public way in the map and accordingly, the application was rejected by the Court below.

3. The petitioners filed the application before the Court of learned Sub-Divisional Magistrate, Dhanbad, which was registered as M.P. Case No. 321 of 2011, wherein it is stated that the first party were residing in a locality behind Lal Kothi Market in the town of Dhanbad. It is stated that Lal Kothi Market is situated on both sides of a 16 feet wide P.C.C. road, which meets the general road and was used by the general public of the locality. Alleging that on 02.12.2010 the members of the second party obstructed the road by putting a wall and thereby, created nuisance which was necessary to be removed for maintaining peace in the locality, the application under Section 133 of the Cr. P.C., was filed by the first party petitioners.

4. The second party opposite parties filed their show-cause in the Court below and according to their case, the road in question is not a public road, rather it is a private road on a raiyati land. According to the case of the second party, Lal Kothi was a bungalow constructed more than one hundred years back by an European Company, M/s. E.D. Sassoon & Company Ltd., on a big chunk of land measuring 2 Bighas, 6 Kathas and 14 Chhataks, and the entire Lal Kothi premises was surrounded by a boundary wall on all sides and there was no common road at all. On 27.01.1941, vide a registered sale deed, the entire Lal Kothi premises surrounded by boundary wall on all sides, as sold by the aforementioned company to one Kripashanker D. Worah, who let it out to the Bank of India, which was its first branch at Dhanbad in 1950’s, which remained there for about 20 to 30 years, i.e., till late 90's with the boundary wall intact. Subsequently, the owners of the Lal Kothi raized the original building to ground and divided the entire 2 Bighas, 6 Kathas and 14 Chhataks of land into small plots and small private passage ways were created for the use of the buyers of the plots of Lal Kothi premises. According to the second party’s case, the original boundary wall was kept intact and the plots and passages were created only inside the old boundary wall. Subsequently, the buyers constructed commercial and residential buildings on their respective plots, but the old boundary wall on the front road side was opened for the use of plot owners. On the other side there was Karbala road which was adjacent South of Lal Kothi premises, and the Southern boundary wall was also opened, but the Northern and Western boundary walls were kept intact. According to the case of the second party, not only the map of the registered sale deed dated 27.01.1941, but also the map prepared by a private Amin, who measured the whole land before its re-plotting on 24.05.1997, clearly showed that there was no road on the land within Lal Kothi premises, which was situated adjacent North of Karbala road and adjacent West of Dhanbad-Jharia main road. Claiming that the land was a private land and no portion of the property had ever been a public land, it was stated that no proceeding under Section 133 of the Cr. P.C., was maintainable.

5. From the perusal of the impugned order it appears that both the sides adduced evidence in support of their respective claims, but he second party did not take part during the fi