1. The facts which have led up to this reference are set out in the order of my learned colleague and I need not repeat them.
2. The recommendation of the Sessions Judge is based upon two grounds:--(1) that the Magistrate should have stayed his hand and should have referred the parties to the civil court when he found that a bond fide and substantial dispute as to title had been raised between the parties; and (2) that on the merits the order of the Magistrate was not a proper order inasmuch as it had not been proved that the way in question was a public way. As to the first of these grounds, we are both agreed that the Magistrate's order cannot be discharged because he failed to send the parties to the civil court. The ruling in Emperor v. Dost Muhammad (1905) I.L.R. 28 All. 98 cannot be accepted as a correct exposition of the law.
3. On the merits, however, I am of opinion that the Magistrate's order is not proper, and I would, therefore, accept the recommendation of the learned Sessions Judge.
4. With regard to the argument that this is not a case for the exercise of our revisional jurisdiction, all I desire to say is that the discretion we have to interfere ought to be exercised in all cases where an attempt is made to abuse the process of the court, so as to prevent parties from resorting to the criminal courts to compel a decision regarding matters which properly lie within the cognizance of the civil courts.
5. The present case constitutes, to my mind, an attempt of this nature, and I, therefore, feel at liberty to scrutinize the evidence so as to ascertain whether the complainant has proved that the way in question is a public way.
6. We are not concerned here with any road made under statutory powers or vested in any public or local authority. We are dealing with an unmetalled path or track which skirts two sides of a village situated in the environs of the town of Azamgarh. The parties to the case are co-sharers in the village, whose shares have been divided by partition. Their houses are adjacent and abut on the disputed way. In order-to show that this way is a public way, it must be proved that it has been dedicated to the public generally. A dedication to a limited section of the public is void and of no avail.
7. Such general dedication has to be inferred from the conduct of the owners of the soil and from uninterrupted user of the way by the general public.
8. So far as the conduct of the owners is concerned, we have the admitted fact that when partition of the village was carried out, the soil over which this way passes was divided between the co-sharers without any reservation of a right of passage for the public. The complainant himself was allotted one of the portions of this land (plot No. 320) and it is difficult in the circumstances to see how he can be heard to say that he has dedicated a right of passage to (the general public. Nor indeed did he make any such allegation in the complaint which he lodged in the Magistrate's court. In this he described the way as follows:
A kachcha road by which all the tenants (riaya) and we ourselves, (meaning, I presume, the zamindars) 'have always Been passing on foot or mounted, and which is used for passing to and fro by the parda ladies (masturat) belonging to families which live in that quarter.
9. That, in my opinion, is not a description of a road used by the public, but of one which is used by the tenants and residents of the village.
10. In his deposition before the court the complainant improved on this description and said the road had been used by the public for 30 or 35 years. In answer to the court he spoke of it as being used by people of the town and people from outside when they come to visit him at his house.
11. The oral evidence in the case is, in my opinion, vague and unconvincing and does not establish user of this road by the general public. Some of the evidence is clearly that of partisan witnesses and may be disregarded.
12. The patwari, who speaks of the way being public, has been in that office for only four or five years, though he speaks of having known the locality for a longer period. He admits that in the settlement record the land is recorded as fallow or waste land (banjar) and that there is no village map or record showing the existence of a public right of way.
13. I place no reliance on the testimony of the two tenants, Naresh and Sadaphal.
14. Then there is the evidence of Roshan Khan, a veterinary surgeon, who has been in practice in Azamgarh for 11 years. This evidence is very cautious and the sum and substance of it is that he uses the road when he goes to visit the 'Babus' (i.e., the zamindars). He speaks of it as being the main way to go to the complainant's house. He also speaks of visiting the house of one Muhammad Idris and using this road for the purpose. We are told that this gentleman is or was a Deputy Collector, who occupied a house in the village.
15. The last witness is the Secretary to the Municipality, who says he has visited Sidhari and driven over the road in an ekka or four-wheeled carriage. His cross-examination suggests that he has little occasion to visit the village and that he only goes there to visit the Babus (i.e., the zamindars).
16. Such is the evidence produced for the complainant. The evidence for the opposite party is of little value, with the exception of that of a partition amin, who carried out the partition of the village. He had before him, at the time of giving his evidence, the partition map and record and he proves that the land in dispute (No. 320) was divided among the co-sharers as 'banjar,' and that there was no record of its being used as a public way. He states definitely that there were only two roads (rastas), viz., Nos. 79 and 152. He speaks of a path existing over No. 320 but he does not speak of that being treated by the parties as a public path.
17. On this review of the evidence I am definitely of opinion that there was no reliable proof before the Magistrate that any public right of way had arisen over the land in question by dedication to the general public. Indeed, the Magistrate seems to have had doubts in the matter, to judge from the following naive remark which occurs in his judgment. Dealing with the fact that the land (No. 320) was recorded as 'banjar' at the time of partition, he says:
This may be no wonder, as every one might have thought of utilizing his share of the village paths in other ways when opportunity arose, so they wore bettor shown as 'banjar' lands.
18. It appears to me that the fact that there is no record in the settlement or village papers of any public right of way over this land, and the further fact that the land was dealt with at partition in a manner quite inconsistent with the existence of any such right, definitely refute the case put forward on behalf of the complainant and dispose of the evidence which was led in support of it.
19. We have here no case of a complaint made by one of the general public alleging the violation of a public right of way. The complainant is a zamindar; the opposite party is also a co-sharer in the village and the complainant's neighbour, and everything about the case suggests the conclusion that what was brought before the court was nothing more than a squabble about a private right of way. Disputes of this nature are not to be decided in the criminal courts.
20. For the above reasons I hold that the Sessions Judge's recommendation should be accepted and the order of the Magistrate discharged.
21. This is a reference by the learned Sessions Judge of Azamgarh, on an application by Abdul Wahid Khan, asking this Court to set aside in revision an order passed against the applicant under Section 137 of the Code of Criminal Procedure. The order relates to an alleged kachcha road in the village of Sidhari, close to Azamgarh, connecting the Muhammadabad and the Ghazipur roads and passing close to the houses of the parties.
22. On a conditional order being made against the applicant under Section 133 of the Code of Criminal Procedure, he appeared to show cause against it and pleaded:
23. Firstly, that the drain in question was fifteen or sixteen years old and did not cause any inconvenience to anybody, and, secondly, that the portion of the alleged road over which it had been built was his private property (it was undoubtedly assigned to him at a partition in 1912), and that there was no public right of way over it. The learned Sessions Judge was of opinion that the moment a bond fide dispute as to title was raised by the defendant, the jurisdiction of the Magistrate was ousted and the Magistrate was bound to stop the proceedings and to refer the parties to a civil suit. That view is supported by a ruling of a Judge of this Court in Emperor v. Dost Muhammad (1905) T.L.R. 28 All. 98. That ruling has recently been dissented from by a Full Bench of the Calcutta High Court in Ram Saqar Mandal v. Alek Nashar (1922) I.L.R. 49 Calc. 682 and, in our opinion, it is incorrect No such limitation on the jurisdiction of the Magistrate is to be found in the language of the Code. On objection being taken by the defendant under Section 135(b), the Magistrate was entitled to decide whether his conditional order was reasonable and proper or not, that is to say, he had to decide whether the defendant had unlawfully obstructed a way which is or may be lawfully used by the public. 24. Although he considered that the learned Magistrate had no jurisdiction to decide the point, the learned Sessions Judge went on to consider the case on the merits, and has held that the Magistrate came to a wrong conclusion on the evidence and that there was no public right of way over the land in dispute. The principles by which the Court is guided in cases of revision are well established and it would not be necessary to refer to them, but they have been to some extent questioned in the course of the argument. A High Court undoubtedly has jurisdiction to entertain a revision on grounds of fact, but it is equally well established that this power should be very sparingly exercised. There is a well-marked distinction between an application in revision and an appeal. It would be futile for the legislature to grant the right of appeal in some cases and to withhold it in others, if the High Court under the guise of a revision were to allow conclusions of fact based on evidence to be canvassed and attacked, on the footing of an appeal. Broadly speaking, the rule is that the High Court will only entertain a revision on facts where either there is no evidence to support the finding or where the finding arrived at is perverse or such as no reasonable man could have arrived at on the evidence produced. The case-law on the subject is collected in Sohoni's Criminal Procedure Code, but the gist of the matter was admirably put by Piggott, J., in Ahsan- ullah Khan v. Mansukh Ram (1914) I.L.R. 36 All. 403 (405):
The revisional jurisdiction of this Court can always be exercised in order to prevent a gross and palpable failure of justice. At the same time it should not be so exercised as to make one portion of the Code of Criminal procedure conflict with another, as would be the case were this Court to permit the practice to grow up of invoking its interference in revision so as to five a right of appeal where such right is definitely excluded by other provisions of the Code of Criminal Procedure.
25. In this respect there is no difference between a refererce and a revision. A person invoking the revisional jurisdiction of the Court is bound, according to the practice of the Court, to apply first to the Sessions Judge or District Magistrate. If the latter considers that a case for revision, is made out, he reports the matter to the High Court, under Section 438 of the Code of Criminal Procedure, with a view to the High Court exercising its revisional powers under Section 439. If the Sessions Judge or District Magistrate considers that the application should not be entertained, he rejects it, leaving the aggrieved party to apply to the High Court direct. Section 439 makes no distinction between the two cases.
26. The Magistrate has used in the course of his order some loose expressions which are criticized by the learned Sessions Judge, but his substantial finding is that
It cannot but be concluded that these banjar portions of No. 320 (the plot in dispute) were recorded all through as public passages and not private and reserved.
27. Naturally a village by-road of this kind would only be used by persons living in the village or by persons having occasion to visit the village, but the (Magistrate does distinctly find that there is a public right of way over the road in question winch has been obstructed by the defendant. The defendant's plea that the drain had been in existence for twelve or fifteen yoars has been found to be, and undoubtedly was, false. The parties, who are next door neighbours and near relations, have fallen out, and the drain has been recently dug for the express purpose of blocking the right of way which previously existed. The oral evidence strongly supports the conclusion at which the Magistrate has arrived. Apart from the complainant himself, and witness Sadaphal Singh, who may be attacked as having had some litigation with the defendant's mother, who state respectively that the road in question is used by people carrying dead bodies to the burning ghat and by ekkas, tumtums and carts, the complainant has called the patwarj of the village, the Secretary of the Municipal Board, and a veterinary assistant. The patwari distinctly deposes that the road is a public way used by people generally and by ekkas and carriages and that he has seen it so used during the last thirty or thirty-five years.
28. The Secretary of the Municipal Board describes it as a kachcha road connecting the Ghazipur and the Mrhammad-abad pacca roads, and states that he has often passed over it in an ekka or hackney carriage, either to go to the house of the complainant or the house of another man named Abdul Aziz Khan, these being the only houses in the village which he happens to have occasion to visit. This witness is a malt of position who is not likely to have given false evidence, and the mere fact that he visited the complainant's house is no reason for rejecting his evidence as false. M. Roshan Khan, the veterinary assistant, Azamgarh, gives similar evidence and says that he has used the road not only to visit the complainant but to visit the bungalow of Munshi Muhammad Idris who is said to be a Deputy Collector living at Sidhari. The evidence called for the defence does not rebut this case; indeed, it contains a good deal to support it. These witnesses put forward the false story of the drain having been in existence for ten or fifteen years, but the very first witness admits that all the Babus, i.e., the zamindars, and other persons go vi that path. In fact the main burden of his evidence was that the drain was old and did not constitute an obstruction. The defendant has in fact not relied on his oral evidence in this Court. He relies entirely on the fact that the plot in suit was not shown as road but as waste land at the settlement, and that it was divided between the different co-sharers at the partition. The former fact is not conclusive, and as to the latter the amin who carried out the partition has been called and he deposes that all the public paths of the village were divided up between the co-sharers at the partition. It appears to me, therefore, that this is emphatically not a case in which this Court would be justified in interfering in revision on the facts, and I would reject the application.
29. A difference of opinion having arisen between the learned Judges of the Bench, the case was laid before Mr. Justice Walsh, who made the following order on the 21st of May 1923.
30. In this case a Magistrate, on the complaint of one Abdullah Khan, has ordered his neighbour, one Abdul Wahid, to remove a nuisance, to wit, a drain dug in an alleged public road in front of the latter's house so as to obstruct the passage of the public and of the complainant. The order was made under Section 133 of the Code of Criminal Procedure. An application in revision was made to the Sessions Court of Azamgarh. The Sessions Judge being of opinion that in. substance there was no evidence upon which it could properly be held that the road was a public way, and that it was an abuse of the process of the court to attempt to put the powers under this section in motion at all, referred the matter to the High Court. Mr. Justice Daniels, before whom it came, referred it to a Bench of two Judges; in due course, it came before Mr. justice Lindsay and Mr. Justice Daniels, and a difference of opinion has arisen both as to whether it could properly be held, on the evidence, to be a public road, and, further, whether assuming the view of the Magistrate to be erroneous, it was not a merely debateable question of fact, with the decision of which this Court ought not, following the well established principles, to refuse to interfere.
31. In my opinion, there is, upon the evidence, no real controversy of fact at all, except in so far as the question whether an inference of prior dedication to be drawn from an admitted state of facts may be said to be itself a question of fact. It is, perhaps, more properly described as a mixed question of fact and law. It will, therefore, be convenient to set out the history of this way as disclosed by the evidence.
32. The way is kachcha. It has never been properly made up, and it has certainly never been repaired by any public authority, even if any kind of casual repair has ever been done to it. It forms a kind of irregular or tortuous base to a triangle, the sides of which consist of two pacca roads which may be described as main roads, and which are undoubtedly roads vested in the district authority. The apex of the triangle is formed by the junction of these two main roads where they intersect at right angles. It might be described as a short cut, or loop, cornice Ling these two roads, and cutting off the two rides of the triangle. But its construction and course, as well as the absence of any work of repair to it by the road authority, all show that it was not brought into existence to serve this purpose. It passes the houses of the complainant and defendant, who were formerly co-sharers. It clearly came into existence as a village by-road or path, for the use and benefit of the persons owning, or occupying, or wishing to visit, the houses and lands which it feeds. The uncontradicted evidence, for example, that of a Secretary to a Municipal Board, and of a Veterinary Surgeon, shows that it has been used indifferently by members of the public visiting the places of persons abutting on the road, without objection, though this user must in the nature of things have been quite casual and intermittent. This sort of user is a common incident in the case of all private roads which serve some purpose other than purposes exclusively those of the owner, who would not be likely to interfere, even if he knew of it, if it did not injuriously affect his own interests, and it certainly cannot, suo motu, be treated as a ground for converting a private way, if it is one, into a public way. The patwari has known and used this road for many years, and is quite satisfied that it is public. But it would be unreasonable to expect, in the case of such an obvious local convenience the use of which created no nuisance, a village owner to make; himself generally unpopular by interference with every isolated user of this kind or with user by villagers. It is equally true that if he wished to interfere, he might find the labour of doing so a greater burden than the maintenance of his right was worth, and so be persuaded to let the latter go, and throw the road definitely open to the public by a tacit dedication. In England landowners were very fond of doing tins in order to throw the burden of repair on to the rates, until the Highways Act of 1835 intervened, and prevented automatic dedication without certain formalities, which included the consent of the road authority and their right to require the road to be properly made up first.
33. It, therefore, becomes material to inquire when, and in what way, the act of dedication, other than that to be inferred from subsequent permissive user, is said to have taken place, and what evidence of it is to be found in the documents. It is to be observed that originally, before partition, the land was held jointly by co-sharers. This fact makes the necessity of inquiring when the dedication was made, all the more material. It was admitted in argument before me that it could not be suggested that it had been made since the partition. But one co-sharer of an undivided share cannot dedicate to the public a way over the common estate without the consent of his co-owners. The act must be the concerted act, at one given moment, of all the joint owners. It is odd that the complainant himself, who must be taken to be either one of the original dedicators, or the successor in title, did not venture to assist the court in this matter by explaining how it happened. Indeed, the language of his complaint indicated (though it would be unduly hard to infer much from this fact), that he regarded the way as appurtenant to his own residence, and the user as mainly for those who came there. Neither the judgment of the Magistrate, nor that of Mr. Justice Daniels, contains any finding as to the actual dedication. The truth is, that not only is there no evidence of a joint dedication, but that such evidence as there is, is inconsistent with it. At the settlement in 1901 the plot or soil over which the way passes was described as 'waste,' or 'fallow,' and not as 'rasta.' By the partition in 1910 all village paths remained joint, and were allotted to those who had jointly held the lands over which such ways passed. This was a just and almost inevitable proceeding, and in the absence of clear evidence of a prior dedication is really fatal to this claim. I come, therefore, to the conclusion that, upon the admitted and uncontradicted facts of the case as presented in evidence by both sides (disregarding the foolish and dishonest allegation by the defence that the drain itself was old), a Judge would have to direct a jury that there was no evidence upon which they could find that there had ever been a dedication, and that a finding in the affirmative would really be perverse.
34. As to the question of jurisdiction my brothers are agreed, and perhaps it does not fall to me to express any opinion. But the whole case is before me, and I will merely content myself with saying that I agree that the Magistrate had jurisdiction. The fallacy in Emperor v. Dost Muhammad (1905) I.L.R., 28 All. 98 lies in the confusion between jurisdiction and discretion, which latter was the second point left more or less open by the Full Bench in Ram Sagar Mandal Y. Alek Naskar (1922) I.L.R., 49 Calc., 682. The section is quite plain. The Magistrate must deal with an alleged 'public' way even though it is disputed. But it is obvious that these summary powers were primarily intended to be exercised in cases where there was no question that the way was one vested in the public, and when that question is seriously disputed, and its decision becomes a difficult matter of mixed fact and law, a Magistrate clearly has jurisdiction to exercise his discretion by declining to decide it, and sending the parties to a civil court. It is impossible to peruse the judgment of the Magistrate in this case without realizing that he failed to appreciate the principles of law underlying a controversy of this kind. Yon cannot convert private property into public, merely because it looks as though it ought to be, and because to do so would be convenient to a section of the public who have enjoyed permissive user over it, and I agree with the Sessions Judge that the Magistrate ought in this case to have declined to decide it.
35. Finally, I hold that in finding that this was a public way the Magistrate misdirected himself, and did so without any evidence to justify such a finding; that the complaint, whatever trespass the act committed upon the complainant's joint rights over the private way may have amounted to, which is a matter for a civil court, was an abuse of Section 133 of the Code of Criminal Procedure; and that the reference must be accepted, and the whole proceedings set aside.