Prinsep and Beverley, JJ.
1. On information given by the defendants the Magistrate proceeded under Chapter X of the Code of Criminal Procedure, and directed the plaintiffs to remove a hut that they had erected on land found by him to be a public thoroughfare. The plaintiffs now sue for a declaration of their title and confirmation of their possession of the land as their private property as against these defendants.
2. The defendants pleaded that the suit will not lie to set aside the order of the Magistrate that the land forms part of a public thoroughfare.
3. Both Courts have relied on the judgment in the case of Mutty Ram Sahoo v. Mote Lal Roy 6 C. 291, in which it was held that a Civil Court can, irrespective of such an order by a Magistrate, try the question whether the land, which formed the subject of that order, is private property and not a thoroughfare or public place as between the parties to such suit and those who claim under them. Field, J., one of the learned Judges who decided that case, seems to have gone even further, but White, J., limited the operation of the order of a Civil Court to the parties before it, and we cannot accept that case as an authority beyond that. But we are of opinion that the law laid down in that case is not in accordance with previous decisions on the point. Those cases were not referred to in the argument raised or in the judgments of the learned Judges.
4. In Meechoo Chunder Sircar v. Ravenshaw 11 B.L.R. 9 : 19 W.R. 345, Couch, C.J., and Kemp, J., held that, the matter having been tried in the manner provided by the Code of Criminal Procedure, 'the plaintiffs have had what the law gives them, and are not at liberty to have the question tried again. The consequence of that would be that there might be another order by the Magistrate, then another suit, and so on.'
5. No doubt in that case the question between the plaintiff and the Magistrate had been referred to a jury, who bad found that the land in suit was part of a public thoroughfare, but such reference to a jury would be entirely optional with a person in the position of the plaintiffs, and because he had not applied for a jury and preferred to show cause-'against the Magistrate's order, the finality of that order after termination of the proceedings would be none the less binding. Rooke v. The Peari Lall Coal Co. 3 B.L.R. Ap. 43 : 11 W.R. 434, is an authority in the same direction, and in Chinta, Monee Bapoolee v. Digambur Mitter 10 W.R. 409 : 2 B.L.R.S.N. 15, it was held that there would be no cause of action against persons who cause the Magistrate to initiate proceedings unless it could be shown that they 'were actuated by malicious motives and with the intention of wrongfully injuring the plaintiff.'
6. If the orders of the lower Courts be maintained, and it be held in accordance with the precedent cited that, as against defendants the plaintiffs had established a private right of property, and if the plaintiffs were again to erect a building on that spot, the Magistrate would not be precluded from acting as before or even enforcing his previous order which is still in force. If therefore a decree in the present suit is inoperative as against the Magistrate and the decision in Mutty Ram Sahoo v. Mohi Lal Roy goes to that extent the interminable procedure condemned by Couch, C.J., in Meechoo Chunder Sircar v. Ravenshaw would result. But upon the authority of the case of Chinta Monee Bapoolee v. Digambur Mitter reported in 10 W.R. 409, no case would lie against the defendants before us. These cases are not referred to in the decision of Mutty Ram Sahoo v. Mohi Lal Roy, and we are therefore not embarrassed with that precedent. We also observe that the Code of Criminal Procedure, 1882, passed since that judgment was delivered in Section 133 declares that no order duly made by a Magistrate under that section shall be called in question in any Civil Court.
7. The suit must therefore be dismissed with costs in all Courts, the orders of both the lower Courts being set aside.