D.S. Dave, J.
1. This reference comes on the report of the District Magistrate, Tonk, dated 29th March, 1961.
2. The facts giving rise to it are that one Purilal Brahman resident of Shukalpura, filed an application in the Court of the Sub Divisional Magistrate, Tonk, Under Section 133, Cr, P. C. it was stated by him that he was taking his cattle to the pasture land through a plot Khasra No. 516, what was a public path, that the opposite parties, namely, Sarwan and Pratap had made encroachment on the public way by unlawful extension of their Baras and therefore it was prayed that proceedings should be taken against them and unlawful obstruction should be removed from the said public path, namely, Kharasa No. 516. On nth January 1961, the opposite parties presented a joint reply. It was pleaded by them that they had purchased the land in dispute from the Gram Panchayat and that they had not made any encroachment on the public path. After inquiry, the Sub Divisional Magistrate came to the conclusion that the opposite parties had encroached upon the land comprised in Khasra No. 516 and therefore on 30th January, 1961, he directed them to remove the encroachment within a week, failing which they would be liable to penalty provided by Section 188 IPC
Aggrieved by this order dated 30-1-1961, the opposite parties filed a revision application in the court of the District Magistrate, Tonk. The learned Dist. Magistrate found that the Sub Divisional Magistrate had committed two mistakes. It is pointed out by him in his reference that the first mistake committed by the Sub Divisional Magistrate was that he did not take into consideration the Patta, which was produced by Sarwan and Pratap. The next mistake pointed out by him is that the Sub Divisional Magistrate proceeded Under Section 137 Or. P. C. without following the procedure laid down in Section 139-A, Cr.PC He has, therefore, recommended that the order of the Sub Divisional Magistrate dated 30th January, 1961, should be set aside and the case should be sent back to him to proceed in the matter according to law.
3. learned Counsel for Purilal contests the correctness of this reference.
4. Pratap and Sarwan have not appeared in this Court.
5. The main objection raised by learned Counsel for Purilal is that from the order-sheet dated 11-1-61, it is clear that the opposite parties Sarwan and Pratap had agreed before the Sub Divisional Magistrate that it they may be found to have made any encroachment upon Khasra No. 516, the obstruction may be removed to that extent. It is pointed out that the Sub Divisional Magistrate accordingly confined his inquiry to the question whether Pratap and Sarwan had made any encroachment on Khasra No. 516.
It has been argued by learned Counsel that the non-petitioners Sarwan and Pratap did not care to get the Patta proved and therefore the Magistrate was not called upon to decide whether the disputed land came within the measurements of the Patta which was produced by the non-petitioners. It has been further argued that although the Sub Divisional Magistrate had not strictly followed the procedure laid down in Section 139-A Cr.PC no prejudice was caused to the non-petitioners and therefore this Court should reject the reference.
6. I have given due consideration to the arguments of learned Counsel for Purilal. learned Counsel is true to the extent that the Sub Divisional Magistrate had noted In the order-sheet dated 11-1-61 that the opposite parties' learned Counsel had conceded that his clients had not made any construction in Khasra No. 516 and that if the Magistrate were to find that they had encroached upon the land comprised In Khasra No. 516, the obstruction may be removed. It may be observed that instead of noting on the order-sheet what was conceded by learned Counsel for the iron-petitioners, the Magistrate ought to have examined the non-petitioners, who were present in the Court and found out from them whether the Patta which they had produced related to the land comprised in Khasra No. 516 or not.
The non-petitioners had taken a definite stand In their reply that the land in dispute was included within the Patta which was given to them by the Gram Panchayat. The original Patta was also produced by them. Before embarking upon an enquiry whether the non-petitioners had made any encroachment upon the land comprised in Khasra No. 516, the Magistrate ought to have called upon the non-petitioners to show prima facie if the disputed land was included in the Patta on which they relied for their title and possession. The non-petittoners were not concerned with the question whether the land in dispute was included in Khasra No. 516. That was the case set up by the petitioner Purilal.
The stand taken by the non-petitioners was that they were in occupation of that land only which they had got by means of a Patta and so the real question which the magistrate ought to have determined was whether the non-petitioners had encroached upon a land not covered by their Patta. The non-petitioners had further denied the existence of any public right of way in respect of the land which was in their occupation. Under these circumstances, it was incumbent upon the Magistrate to firs proceed Under Section 139-A Cr.PC and find out if there was any reliable evidence in support of the denial made by the non-petitioners. If the non-petitioners could prove that the land in dispute was included in the Patta, that would have certainly been reliable evidence in support of their denial and in that case the Magistrate should have stayed the proceedings until the matter of the existence of the right of way was decided by a competent civil court.
If, on the contrary, the Magistrate were to come to a finding that there was no reliable evidence in support of the stand taken by the non-petitioners, then he could proceed in the matter as laid down in Section 137 Cr.PC In Kalyan Singh v. The State 1954 Raj LW 704 it was held by a learned Single Judge of this Court that 'in proceedings Under Section 133 Cr.PC the provisions of Section 139A (1) are mandatory and the Magistrate is not authorised to jump to the proceedings Under Section 137 of the Criminal Procedure Code without taking any proceedings Under Section 139A'. The learned District Magistrate has rightly pointed out that the Sub Divisional Magistrate has not followed the mandatory provisions of Section 139A. There is thus little force in the contention raised by learned Counsel for Purilal against the correctness of the reference.
7. The reference is therefore allowed. The order of the Sub Divisional Magistrate, Tonk, dated 30th January, 61, is set aside. The case be sent back to him with direction that he should first proceed Under Section 139A Cr.PC and then decide the matter according to law.