The judgment emphasized the importance of properly considered evidences in determining the nature of disputed land and highlighted the limitations of findings in proceedings under section 133 Cr.P.C. in civil court.

Pramod Kumar Srivastava, J.

1. Original Suit No. 106 of 2004, Ravikant Upadhyay Vs. Kailash Upadhyay and others, was filed by plaintiffs with averment that in western side of their house there lies a pathway, after which land of Sahan of the defendants-respondents situates. Plaintiff has easementary right over this disputed piece of land of pathway, the land and width of which is 3 ft. X 8 ft. Defendants are illegally trying to take forcible possession of said Gali for usurping the same. Therefore, plaintiff had filed suit for permanent injunction with relief that defendants are restrained from raising any construction or over disputed pathway (Gali) and from restraining plaintiffs from using it.

2. The defendants had filed written statement, in which they denied plaint averment and it was pleaded that ancestors of parties are the same. There had been partition between them and after that parties are living separately over the portion of property came in their share. Plaintiffs have constructed their house over whole portion of their share. Disputed piece of land is not pathway (Gali) but it is part of Sahan of defendants. Plaintiffs have their own doors for going and coming to their house. The suit of plaintiff is liable to be dismissed.

3. The trial court had framed issues, accepted evidence of the parties, heard their arguments and then Civil Judge (Senior Division), Chandauli had passed judgment dated 15.11.2011, by which original suit was decreed for the relief of permanent injunction as prayed. Against this judgment of trial court, civil appeal no. 5 of 2012, Sri Niwas Upadhyay Vs. Ravikant Upadhyay was preferred. First appellate court had afforded opportunity of hearing to parties and thereafter Additional District Judge, Court No. 1, Chandauli had passed impugned judgment dated 30.9.2015, by which appeal was allowed and judgment dated 15.11.2011 passed by trial court was set aside and original suit was dismissed. Against this judgment of first appellate court, present second appeal has been preferred.

4. Learned counsel for the appellant contended that first appellate court had erroneously relief on the judgment and findings of Executive Magistrate given in proceedings under section 133 Cr.P.C. He contended that proceedings under section 133 Cr.P.C. relates only to public way, which is not the case of disputed land. He also contended that proceedings under section 133 Cr.P.C. are of summary nature and findings of Executive Magistrate in such proceedings have no evidentiary value. Therefore, judgment of first appellate court based on findings of Executive Magistrate in case under section 133 Cr.P.C. is erroneous and is liable to be dismissed.

5. I am in agreement with this contention of appellant side that proceeding under section 133 Cr.P.C. are of summary nature and any finding of Executive Court during such proceedings have no evidentiary value in civil court. Although, first appellate court had also relied on findings of Executive Magistrate given during proceedings under section 133 Cr.P.C. but apart from it judgment of first appellate court is based on other discussions and evidences, which are mentioned in it.

6. Trial court had relied this portion of statement defendant witness DW-2 that when the property in question was partitioned at the time of their ancestors, then a Gali (pathway) was left towards north and west of the house of Ravikant. On the basis of this oral evidence, trial court had held that the portion of disputed land situated towards west of the house of plaintiff should be the pathway (Gali). This may be one interpretation, which was not accepted by first appellate court, which had meticulously distinguished the facts and interpretation available due to evidences and held that in disputed land, there is no opening of house of plaintiff, and just south of the disputed land detailed in the plaint by letters A, B, C and D, there i s a door in the western wall of the house of plaintiff, which direc