RAGHUBAR DAYAL, J.

( 1 ) THIS is a revision by Bhola against the order of the Sessions Judge, Budaun, confirming the order of a Magistrate, second class, making an order Under Section 133, requiring him to remove a certain obstruction, absolute.

( 2 ) TWO points were argued in this revision. One was that the learned Magistrate was not right in holding that there was no reliable evidence in support of the applicants denial of a public right of way over the land in suit. I see no good reason to differ from the findings of the Courts below on this point.

( 3 ) THE main point urged in this revision is that the Tehsildar Magistrate, second class, was not competent to pass the order under revision in view of the fact that the applicant was not directed by the conditional order passed Under Section 133, Criminal P. C. , to appear and show cause against it before this Magistrate. That order required him to appear before the Sub-Divisional magistrate who had issued the order. The Sub-Divisional Magistrate was incompetent to transfer the proceedings to the second class Magistrate at a stage subsequent to the passing of the conditional order.

( 4 ) THE record does not contain the original order issued to the applicant. Both the Courts below, however, in their orders indicate that the original order issued to the applicant directed him to appear before the Sub-Divisional Magistrate. The Tehsildar Magistrate notes in his judgment: "accordingly a notice Under Section 133, Criminal P. C. , was issued in the Court of sub-Divisional Magistrate, Data Ganj against Bhola on 23rd April 1948, calling upon him to remove the obstruction. The notice was served, and the accused appeared in the Sub-Divisional magistrates Court on 29th May 1948 and the records were transferred to my file for further proceedings. " the learned Sessions Judges order repeats these facts and adds that on 29th May the applicant was also given a copy of the notice, a copy of which was kept in the file. It was on this basis that this point was raised and decided by the learned Sessions Judge. I must, therefore, hold that the conditional order issued to Bhola applicant required him to appear before the Sub-Divisional magistrate to show cause if he objected to comply with the conditional order.

( 5 ) IN support the learned counsel for the applicant relies on the cases of Umrao Singh v. Kanwar lal, 39 Cr. L. J. 603 : (A. I. R. (25) 1938 Lah. 323) and Mohammad Baksh v. Emperor, 48 Cr. L. J. 295 : (A. I. R. (35) 1948 Lah. 49 ). Both these cases are single Judge decisions of the Lahore high Court. In both these cases a first class Magistrate who initiated proceedings Under Section 133, Criminal P. C. , transferred them to a second class Magistrate at a late stage, and it was held that the second class Magistrate had no jurisdiction to dispose of the proceedings. It appears that none of these Magistrates was a Sub-Divisional Magistrate. No reference was made to the provisions of Sections 192, 529 (f) and 537, Criminal P. C.

( 6 ) ON behalf of the opposite party, reliance is placed on the cases of Jagroshan Bharthi v. Madan pande, 6 Pat. 428 : (A. I. R. (14) 1927 Pat. 265 : 28 Cr. L. J. 910), Jagdish Singh v. Baijnath singh, A. I. R. (30) 1913 Pat. 115 : (44 Cr. L. J. 364) and Chanderdip Mahton v. Emperor, A. I. R. (32) 1945 Pat. 334 : (47 Cr. L. J. 29 ). There is not any discussion of law in the first two cases. In the case of Chanderdip Mahton v. Emperor, A. I. R. (32) 1945 Pat. 384 : (47 Cr. L. J. 29), it was held that it was irregular on the part of the Sub-Divisional Magistrate to have transferred the case to a second class Magistrate after the party proceeded against Under Section 133, Criminal p. C. , had appeared to show cause before the Magistrate who had issued the conditional order, and that this irregularity was cured by the provisions of Sections 529 (f) and 537, Criminal P. C.

( 7 ) I am inclined to agree with the view of the Lahore High Court in preference to the view ex