JUDGMENT

Roy, J. - This is an application in revision against an order of a learned Magistrate passed under the provisions of Section 133 of the Code of Criminal Procedure which has been confirmed in revision by the learned Addl. Session Judge of Agra by his order dated 11.7.1956

2. The applicant Lala Bissomal obtained certain land from the Chairman the Town Area Committee of Achhnera who also happened to be at one time the Zamindar of the place The applicant started certain constructions sometime prior to the year 1950. The Town Area committee of Achhnera instituted proceedings against Bissomal for demolition of the constructions on the ground that they were encroachment on public land or public way. During the course of that matter an application for temporary injunction was made (sic) Bissomal from proceeding with the further constr.uction. By an order dated 11-1-1949 the application for temporary injunction was rejected by the Magistrate, but the Magistrate by the same order further observed.

It would in, addition be a negations of the entire proceedings if opposite party are allowed, complete the construction, and therefore is desirable that they should not go on this unauthorised construction until and unless the present case is disposed of.

3. The Town-Area Committee subsequently complained to the same Magistrate that Bissomal had not respected the order' aforesaid and that he was proceeding with the construction. The Town Area Committee ultimately succeeded in having a complaints filed against Bissomal u/s 183 of the IPC. Against the sanction for the complaint which was passed by the Magistrate under the provisions of Section 476 of the Code of Criminal Procedure an appeal was filed before the Sessions judge u/s 476(B) of the Code and was allowed by him on 11-8-1950. The Sessions judge was of the view that the proceedings that were pending before the Magistrate were not u/s 133 of the Code of Criminal Procedure and consequently the Magistrate had no jurisdiction to pass an order for the stay of the construction and there was, therefore, no disobedience of any lawful order passed by the court which could be made the subject of a complaint u/s 188, IPC.

4. It appears that about four year later, that is, in the middle of July, 1954, the present proceedings were started by the Town Area Committee, Achhnera u/s 133 of the Code of Criminal Procedure in regard to the same construction. The Town Area Committee contended that the construction' complained of was over public land and the it interfered with a right of way which vested is the public. The Magistrate issued a provisional order u/s 133 of the Code of Criminal Procedure. Bissomal then appeared and denied that the place was a public place at all. He said that the land was his own and that he had bought it, from the Zamindar. The Magistrate purported then to hold an enquiry u/s 139A of the Code of Criminal Procedure. Bissomal produced some evidence in support of his contention. The Magistrate then passed an order on 4-3. 1955, by when he held., "The opposite, party has failed to satisfy that there is no right of public to use this land as Rasta or otherwise."

5. After having given that finding the learned Magistrate purported to proceed u/s 137 and 138 of the Code of Criminal Procedure and directed the parties to Adduce further evidence in the case. Further evidence was taken and by an order dated 4-8-1955, he made the order u/s 133 final and he thereby directed Bissomal to remove the obstruction. The Magistrate had rather a confused notion of what he was called upon to decide; and the decision by him suffers under the same confusion of thought. At one place in his judgment dated 4-8-1955, he mentioned that it was clear to him that the title claimed to the land alleged to have been obstructed was not prove by reliable and cogent evidence. At another place in the judgment he mentioned that the land on which Bissomal had made the construction belonged to the Town Area. At third