1. This is an application in revision against an order passed by the learned Sub-Divisional Magistrate of Roorkee. This order was passed in the course of proceedings under Section 133, Criminal P.C. An application was made to the Magistrate that the applicants) in the application before me had erected a building and thereby blocked a public right of way. The applicants before me produced certain evidence under the provisions of Section 139-A, Criminal P.C., to prove that no right of way existed. The Magistrate came to the conclusion that the evidence was not reliable and consequently expressed his intention of proceeding with the case without leaving any matter to the decision of a competent Civil Court. It has been argued that the Magistrate went beyond his jurisdiction. I have no doubt that this argument is correct. The applicants before me produced a deed of sale to show that they had acquired a title in the land upon which they had built. They produced the record of a settlement to show that their transferor had a title in the land. The question remained whether the public had acquired a right of way over that land. The applicants before me produced two maps to show that the path at one time passed along the edge of their field and outside it. The question therefore remains whether within a period of the last 28 years or so after 1910, which is the year of the later map produced by the party who claim a right of way, have acquired such a right.
2. This is obviously a very substantial question, and might well be decided one way or the other on the evidence produced. It cannot possibly be said that the contention of the applicants before me is frivolous or that it is entirely unsupported by evidence. If they prove that the land is theirs the burden of proving a right of way over it rests upon these who assert it. The Magistrate allowed the opposite party to produce a copy of an ordinance map, but that merely snowed that there was some pathway, somewhere through the village in which the plot in suit lies. It may well be that the public way at one time was outside the land in dispute and that for some years recently, because that land has not been cultivated, certain people have diverted the way, but that is not sufficient to establish a public right of way over this land. It would be necessary strictly to prove that a right of way had been acquired. In these circumstances this is obviously a matter which can only properly be decided by a competent Civil Court. I therefore direct that the Magistrate shall stay proceedings under the provisions of Section 139-A, Criminal P.C., until such decision is reached.