The main legal point established in the judgment is that a party cannot deny an encroachment after conceding the obstruction and seeking time for its removal.

DEEPAK GUPTA, J.

This petition is directed against the order dated 13.02.2018 (Annexure P-1) passed by learned Sub Divisional Magistrate, Siwani District Bhiwani in case under Section 133 of the Code of Criminal Procedure directing the petitioner to remove the alleged encroachment of passage within 10 days; and also the order dated 11.06.2018 (Annexure P-3) passed by learned Additional Sessions Judge, Bhiwani, whereby revision against the above said order 13.02.2018 has been dismissed.

2. On perusal of the paper book, it emerges that a complaint was made by Raj Kumar & Gulab Singh (respondent Nos.1 and 2 herein) before Sub Divisional Magistrate, Siwani alleging that Bhana Ram (now petitioner) had made unauthorized encroachment over a passage comprised in Khasra No.586 measuring 4 kanal 4 Marla, which was causing obstructions to the complainant and other villagers in accessing their fields.

3. Upon notice of the complaint, respondent Bhana Ram (petitioner herein) appeared through his counsel and sought time of 15 days for removal of the encroachment. On the basis of said stand and on finding that passage had been encroached upon by the petitioner, which was causing obstruction to the complainant and other villagers in accessing their fields, the application was allowed and petitioner was directed to remove the encroachment within 10 days, vide impugned order dated 13.02.2018. Revision against the said order has been dismissed by the learned Additional Sessions Judge, Bhiwani vide order dated 11.06.2018.

4. Assailing the aforesaid orders, it is contended by the petitioner that alleged passage was left for his personal use, in which nobody else has the right to use as a passage; that he did not make any encroachment; that patent illegality has been committed by the Courts below in passing the impugned orders, as counsel for the petitioner had never admitted the encroachment nor had sought time of 15 days for removal of the same. In this regard, affidavit of the counsel for the petitioner is annexed as Annexure P-4. It is further submitted that no proper opportunity was provided to the petitioner to adduce evidence in order to show that there existed no passage and that no public right in respect of the property was involved in the matter. No mandatory procedure under Section 137 Cr.P.C. was followed. Not only this, the alleged passage was left only for the fields of the petitioner and proforma respondents, inasmuch as the land of respondent Nos.1 and 2 abuts to other Rasta bearing khasra No.597 and that the complaint was made under Section 133 Cr.P.C. with malafide intention. Petitioner further submitted that he along with proforma respondents are cultivating the land, alleged to be the passage, since long time and so, proceedings under Section 133 Cr.P.C. could not be launched and only the Civil Court had the jurisdiction to adjudicate the rights of the parties. Petitioner had already filed a suit for permanent injunction against respondent Nos.1 & 2 titled as Bhana Ram vs Gulab Singh etc. in which status quo was directed to be maintained and once the civil proceedings are pending regarding same subject matter, proceedings under Section 133 Cr.P.C. could not come into play to determine the rights of the parties. It is also contended that when there is old obstruction to the passage, proceedings cannot be initiated under Section 133 Cr.P.C. With all these submissions, prayer is made for setting aside the impugned orders.

5. Upon notice, appearance has been made on behalf of respondents, who defended the impugned orders. It is pointed out that in the grounds of revision filed before learned Additional Sessions Judge, Bhiwani, it was nowhere pleaded that counsel for the petitioner had not conceded that obstruction shall be removed within 15 days and that this ground has been taken for the first time before this Court and so, the same is not admissible. It is further contended that since encroachment has been conceded to by the petitione