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Gowdappa Gowda and ors. Vs. Tippangowda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1964CriLJ111
AppellantGowdappa Gowda and ors.
RespondentTippangowda and ors.
Excerpt:
.....on grounds of delay and laches. - if in such inquiry the magistrate finds that there is-any reliable evidence in support of such denial, he sheaf stay the proceedings until the matter of the existence of such right has been decided by a competent civil cortex' in the present case, the magistrate held an enquiry any came to the conclusion that there was reliable evidence in support of the denial of public right of way in survey nos. 4. what has been argued on behalf of the petitioner is that the magistrate has not assigned his reasons any discussed the evidence in detail in support of his conclusions that the evidence of the witnesses was reliable. 102 of 1954 on 20-10-1955. 6. the present dispute has arisen in 1960, when the petitioners complained that respondents 1 to 5 had put..........(2) is relevant and it reads thus:if in such inquiry the magistrate finds that there is-any reliable evidence in support of such denial, he sheaf stay the proceedings until the matter of the existence of such right has been decided by a competent civil cortex' in the present case, the magistrate held an enquiry any came to the conclusion that there was reliable evidence in support of the denial of public right of way in survey nos. 29, 30 etc. and ordered that the proceedings under section 133 should be stayed until the matter of the existence of the public right of way was decided by a competent civil court.4. what has been argued on behalf of the petitioner is that the magistrate has not assigned his reasons any discussed the evidence in detail in support of his conclusions that.....
Judgment:
ORDER

T.K. Tukol, J.

1. The petitioners before this Court have challenged the correctness of the order passed by the Sub-Divisionaj Magistrate, Bagalkot Division, Under Section 139-A (2j of the Code of Criminal Procedure.

2. There is a dispute between the parties to tune petition regarding the right of way as shown in the has sketch enclosed to the petition as regards certain Survey Numbers and paths leading to different villages in the vicinity. The petitioners alleged that the respondents has put up obstructions' and had prevented them from using truer way. The learned Sub-Divisional Magistrate issued notice to the opponents to show cause. The opponents appeared and denied the existence of way.

3. Section 139-A (1) lays down that when a party against-whom an order has been made, appears before the Magistrate the latter shall question him as to whether he denies-the existence of any public right in respect of the way and then if he does so, the Magistrate shall enquire into the matter before proceeding Under Section 137 or Section 138. Sub-section (2) is relevant and it reads thus:

If in such inquiry the Magistrate finds that there Is-any reliable evidence in support of such denial, he sheaf stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Cortex' In the present case, the Magistrate held an enquiry any came to the conclusion that there was reliable evidence in support of the denial of public right of way in Survey Nos. 29, 30 etc. and ordered that the proceedings Under Section 133 should be stayed until the matter of the existence of the public right of way was decided by a competent Civil Court.

4. What has been argued on behalf of the petitioner is that the Magistrate has not assigned his reasons any discussed the evidence in detail in support of his conclusions that the evidence of the witnesses was reliable. In support of this contention, my attention has been drawn to the decision in Mohd. Ayub v. State : AIR1952All215 where it has been laid down that the High Court has Jurisdiction Under Section 435 to interfere in cases where the Magistrate has not correctly appreciated the evidence that was produced in support of the denial of the existence of the public right of way Under Section 139-A (2). 1 have been taken through certain portions of the judgment and as is evident from paragraph 31 of the judgment, their Lordships went through the evidence and came to the conclusion that the finding given by the Magistrate was Incorrect, They accordingly allowed the petition.

5. In the present case, what the learned Magistrate-has done is to refer to the names of persons who were examined in the case in support of the denial of the right of way and then refer to the Village Maps and Taluka Maps-with regard to the existence of the right of way daimio fey the petitioners. He has also referred to the report made by the Extra Awal Karkoon and of the Tahsildar. He also referred to the decision of the Civil Court and the remarks, of the Assistant Judge in appeal against the decision of the Civil Judge, Junior Division, Bagalkot. it is the evidence that a Civil Suit was filed in the Civil Court at Balkot in regard to the existence of the present way, against Respondents 1 and 5 and the father of respondents 3 and 4 and others. The suit was for a permanent Injunction. Though the suit was decreed by the trial Court on 10-4-1954, it came to be dismissed In Civil Appeal No. 102 of 1954 on 20-10-1955.

6. The present dispute has arisen in 1960, when the petitioners complained that respondents 1 to 5 had put up a bund on 19-7-1960 at the points marked A, B and U In the Map, I may observe at the outset that the learned Sub-Divisional Magistrate should have discussed the evidence without merely remaining satisfied. by a mere reference to the names of the witnesses examined in the case. But his conclusion that there is reliable evidence in support of the denial is borne out by what took place in the Civil Court. As observed above, it was In respect of this way which is in dispute that a Civil suit was filed and that Civil Suit has been dismissed finally by the appellate Court. The Petitioners' advocate submits that that suit was not dismissed on merits and therefore, it could neither operate as ros judicator against the petitioners nor could it be relied upon by the respondents for any purpose. We are not concerned with the question of res judicata in this case. It is sufficient to note that the petitioners asserted the right of way and their assertion of the existence of the right of way in the Civil Court and their prayer for an Injunction to restrain the opponents or their predecessors has been dismissed. That itself is sufficient to support the Magistrate's conclusion that there was reliable evidence to support the denial. The Magistrate has not rightly taken upon himself the question of deciding the rights of parties one way or the other. He has merely directed the parties to a Civil Court. In this connection, Mr. Albal has drawn my attention to the decision of the Calcutta High Court in Sushil Chandra Ghosh y. Tushar Kantl Ghosh, ILR (1951) 1 Cal 126 where after noting the absence of any provision in the Criminal Procedure Code laying down the procedure to be followed in an enquiry of this type the learned Judge, Sen J. explained the scope of the enquiry in these words:

The Magistrate has not to decide anything finally. All fie has to ascertain is whether a person denying the existence of public right of way has reliable evidence in support of such denial. He need not take any evidence. He need merely satisfy himself that such reliable evidence actually exists in support of the denial. In some cases, oral evidence may have to be given, but in others production of documents which are difficult to challenge may t sufficient to justify a Court in holding that reliable evidence exists In support of such denial.

7. In the present case, apart from anything else, In my opinion, the two judgments of the Civil Court lend sufficient support for the denial by the opponents, in that view, I conclude that the order passed by the Sub-Divisional Magistrate is correct. I uphold the order and dismiss the petition.


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