Hon'ble Sudhir Kumar Saxena, J.

1. This revision has been filed under Section 397/401 Cr.P.C. against the order dated 18/12/2014 passed by City Magistrate, Gorakhpur in case no. 24 under Section 133 Cr.P.C., directing revisionist to remove the encroachment within a week, failing which face prosecution under Section 188 IPC.

2. I have heard Sri P.K. Srivastava for respondent and learned AGA. None appeared for the revisionist. I have perused the record.

3. Briefly stated revisionist's case is that an application was filed by Smt. Manorama Srivastava before City Magistrate, whereupon Police submitted report to the effect that revisionist-Smt.Ramawati has closed the public way creating obstruction in movement of the common people. Agreeing with the report of the Police, City Magistrate issued a conditional order on 25/07/2013 under Section 133 (1) Cr.P.C. Smt. Ramawati in her statement before learned Magistrate alleged that she had been living with her husband and children in House no. 311, since long as tenant, which house has been purchased by her. No encroachment has been done by her. After demolishing old house, new construction has been made and report of the Police is not correct. A civil suit was filed for injunction bearing suit no. 1044 of 2013. Notice has been issued without hearing as such same may be rescinded etc. etc.

4. Complainant stated that area of plot no. 264 is only 650 sq. feet while total construction made is on 1100 sq. feet, which is definitely an encroachment warranting intervention under Section 133 Cr.P.C. Width of the public street was eight feet, which has been reduced to two feet. Moreover, Smt. Ramawati Devi had purchased the house covering the area of 967 sq. feet and there is encroachment on public road. Complainant's case is that revisionist had constructed RCC pillars, blocked the road and overhanging projections have been built, restricting the movement in public street.

5. City Magistrate came to the conclusion that there has been public street between the house of both the parties. Nagar Nigam and Gorakhpur Development Authority both have found that Smt. Ramawati Devi has encroached over the public way. Consequently, City Magistrate concluded that revisionist and her sons have closed the public street by making illegal construction as such, conditional order is liable to be confirmed. City Magistrate confirmed the order dated 25/07/2013 and directed Smt. Ramawati Devi to remove the encroachment within a week failing which she will be held guilty of violation of the court's order. Copy was sent to Inspector, Rajghat for compliance. This very order of City Magistrate passed on 18/12/2014 has been impugned in this revision.

6. Before reverting to the legal submission, facts culled out from the affidavit filed by revisionist may be mentioned. Smt. Ramawati has filed an affidavit in revision giving the entire history of litigation. In para 3 of the affidavit, it is stated that she purchased the house measuring 967.79 sq. feet, through registered sale deed on 08/08/2008 and got her name mutated in the record of Nagar Nigam, Gorakhpur. Copy of the sale deed and Khasra issued by Nagar Nigam have been annexed with the affidavit. From the copy of sale deed, it is apparent that Ashwini Kumar and Akhilesh Kumar, erstwhile owner sold the house to Smt. Ramawati Devi for a sum of Rs. 6,75,000/-. Total area sold is 967.71 sq. feet. i.e. 89.93 sq. metre. Constructed area was 894.71 sq. feet i.e. 83.1514 sq. metre. Revisionist was tenant in the house for the last 35 years which she purchased by means of registered sale deed. Not only on the top but also in the body of the sale deed, total area has been mentioned as 967.71 sq. feet (89.9358 sq. metre) which was sold. Boundaries of the house as mentioned in the sale deed show that towards east, there is house of Ganga Prasad Srivastava, towards west, eight feet wide gali (road), towards north, house of Dr. Ghaneshwar Prasad Shukla and towards south,