ORDER

This petition under Section 482 of the Code of Criminal Procedure has been filed to set aside the order dated 16.07.2021 passed in Criminal Revision No.41/2019 (Yagbalk Vishwakarma and another vs. Shivsahay Yadav) whereby revision preferred against the order dated 05.09.2019 passed by SDM Amarpatan District Satna has been dismissed.

2. Learned counsel for the petitioners has submitted that earlier respondent no.1 Shivsahay Yadav had filed an application before the respondent no.2 SDM alleging that land bearing Khasra No.634 area 0.138 acres in village Katahaha is Government land and same is shown as Garden in the revenue record. It was alleged that petitioners and others persons have made pakka construction on it by raising brick wall and as such they have created nuisance by stopping public way of the respondent no.1. Petitioners filed objection challenging the maintainability of the application filed by the respondent no.1 and submitted that previous case no.

3/Criminal/133/2017/Criminal Case No.5/2017 under Section 133 of Cr.P.C.

order dated 20.12.2017 (Shivsahay Yadav vs. Yagbalk Vishwakarma and another) has already been dismissed. A revenue case no. 21-A70/2016-17 under Section 248 of M.P. Land Revenue Code has also been dismissed on 07.07.2018. Civil Suit No.45-A/2014 (Shivsahay Yadav vs.Yagbalk Vishwakarma and others) has also been dismissed vide judgment dated 21.08.2017. SDM-respondent no.2 without considering the aforesaid objections about the maintainability of application filed by the respondent no.1 passed interim order dated 05.09.2019 stating that application under Section 133 of Cr.P.C. is maintainable. Aforesaid order was challenged by filing revision application but revision has been dismissed by Second ASJ Amarpatan District Satna.

3. It is submitted by learned counsel for the petitioners that principle of res judicata are applicable in the subsequent case but learned SDM has committed an error in not applying principle of res judicata in the proceedings.

Therefore, impugned order passed by the SDM and order of revision passed by learned ASJ are bad in eye of law. Therefore, it has been prayed that order dated 16.07.2021 passed in Criminal Revision No. 41/2019 passed by Second ASJ Amarpatan District Satna affirming the order dated 05.09.2019 passed by respondent no.2 SDM Amarpatan District Satna be quashed.

4. Heard learned counsel for the parties at length.

5. It is apparent that by the impugned order, learned SDM has given finding that application filed by the respondent no.1 under Section 133 Cr.P.C.

is maintainable. On a perusal of the order dated 20.12.2017, it is revealed that Civil Suit No.45-A/14 was filed by the respondent no.1 Shivsahay Yadav, said Civil Suit was dismissed by Civil Judge Class II, Amarpatan as disputed land was found to be Government land. Previous application under Section 133 of Cr.P.C. filed by respondent no.1 Shivsahay Yadav was also dismissed as SDM was of the view that matter does not fall within purview of Section 133 of Cr.P.C. It was decided in the Civil Suit that plaintiff respondent no.1 Shivsahay Yadav had no perfected easementary right to way on the land in question and his suit for mandatory injunction was dismissed.

6. On a perusal of impugned order passed in revision by Second ASJ, it is revealed that respondent no.1 Shivsahay Yadav has again moved an application under Section 133 of Cr.P.C. before SDM alleging that non-

applicants-petitioners have encroached the way by raising brick wall.

7. As far as public nuisance is concerned, Magistrate is required to enquire into the matter and purpose of inquiry is that if there is a reliable evidence in support of such denial then he may stay the proceedings until the matter of existence of right has been decided by the competent Court and if he finds that there is no such evidence he may proceed under Section 137 of Cr.P.C.

8. The provisions of Section 133 of Cr.P.C. are applicab