A Magistrate cannot make a conditional order under Section 133 Cr. P. C. absolute without recording further evidence of the complainant after the opposite parties have denied the existence of the public land and any nuisance being committed by them.

( 1 ) THIS revision has been filed by Gram Samaj Manauta through its Pradbanamar Singh, resident of village Menauta Police Station Gandhour, District Bijnoragainst the judgement and order dated 23. 5 198 I, passed by Sri Jaswant Singh, II Additional Sessions Judge. Bijnor allowing the Criminal Revision No. 40. of 1979 preferred by Opposite parties Bhondi and another against the judgment and order dated 19. 12. 82 by Sri V p. Singh, S. D. M Bijnor under Section 133 Cr. P. C. in case no. 40 of 1979 State Vs Bhondi and others directing the opposite parties Bondi and Mangli not to use the western door of their house and also net to use the open land lying before the western door. The proceedings under Section 133 Cr. P. C. were initiated against the Opposite Parties Bhondi and Maligli on an application of Amar Singh, Pradhan of the village on behalf of Gram Samaj Manauta.

( 2 ) IT was alleged by the Gram Samaj Manauta that there is a public land lying in front of the western door of the house of Opposite parties Bhondi and Mangli and the said door had been opened recently by them in order to use the said public land, which was used by the village people for burning Holi and celebrating other functions. The learned Magistrate called for a report from the Naib Tahsildar who by his report dated 30. 9. 80 admitted that the Opposite parties Bondhi and Mangli had recently opened a door on the western side of their house towards the open land which was meant for burning Holi and for celebrating other functions by the village people and after the receipt of the report of Naib Tahsildar, the learned Magistrate passed - conditional order on 10 12- 1979 asking the opposite parties to remove the door and also cattle troughs from the public land within 15 days or. show cause and further directed Opposite parties to appear before his court on 20-3-80. In pursuance of the aforesaid directions, the Opposite parties appeared and filed Written Statement and asserted that the door on the written side of their house was an old one and they have been using the open land lying adjacent to their door since long It is appurtenant to their house and the land is not a public land. It was further asserted by them that Sri Amar Singh Pradhan is inimical to them and misusing his position to harass them. They also examined Mangli (DW. 1), Pati Ram (DW. 2) Bhagwan (DW. 3) Bhondi (DW. 4) and all of these witnesses have clearly stated in their evidence that the door of the opposite parties on the western side of their house was an old one and they were using their door and the adjacent land since long. The statements of DW5 1 to 4 went unchallenged and no cross-examination was done by the applicant. The Opposite parties have also examined DW. 5 Ram Das to prove the application dated 20 3-80 sent by the Opposite Party Mangti to the Superintendent of Police, Bijnor. complaining regarding the high handedness of Amar Singh Pradhan of the village.

( 3 ) SRI R. H. Zaidi, learned Counsel for the applicant rightly contended that the learned Sessions Judge was in error in holding that the report of Naib Tahsildar was not admissible in evidence as the Naib Tahsildar was not examined to prove his report. It may be noted that the report of the Naib Tahsildar is admissible in evidence in view of the provisions contained in Section 141 J (l) Cr. P. C. It was further contended by the learned Counsel for the applicant that there was sufficient evidence on the record to prove that the Opposite parties bad encroached the open public land and had opened the door recently on the western side of their house and thus causing nuisance on the- public land but the record of the case speaks otherwise. As a matter of fact no evidence, on behalf of the applicant was adduced after passing of the conditional order and also after the opposite parties appeared and bad denied the existence of the public land or guilty of causing any nuisance. It may be noted that the Gram Samaj M