1. This is a Rule calling upon the District Magistrate of Dacca of show cause why the orders passed under Sections 133 and 137 of the Criminal Procedure Code, dated the 28th February 1914, should not be set aside on the ground that having regard to the bond fide question of title raised, and in the absence of any finding that the objection raised was not bond fide, the order is without jurisdiction. It appears from the order of the Deputy Magistrate concerned that Manipur Dey, the petitioner before us, on receipt of a notice under Section 133 of the Criminal Procedure Code, appeared and alleged that the pathway in question was not a public pathway. The following are the findings of the trying Magistrate with regard to the objection thus raised. 'It is contended on behalf of Manipur Dey that the way cannot be called public, if a few neighbours and acquaintances have acquired mere permissive right thereto...It is idle in the present case to urge that the way is Manipuri's private property, it is waste--land lying between houses and extending beyond Manipuri's house... It is pointed out that the Settlement Department has not recognised the way as a public rasta. It is to be remembered that a rasta, which is less than 15 links in width, is incapable of representation on the Settlement map, scale 16' to a mile, and is ordinarily ignored in the khatians' Section 133 occurs in a Chapter headed ' Public Nuisances' and the section itself deals with unlawful obstruction, etc., of any way, etc., used by the public, etc. Sub-section (2) of Section 133 of the Criminal Procedure Code provides that no order duly made by a Magistrate under this section shall be called in question in any Civil Court. From this latter provision it is clear that the provisions of Section 133 of the Criminal Procedure Code should be sparingly used. Any order passed under this section cannot be questioned in any Civil Court. It is, therefore, necessary that if the party against whom the order is contemplated to be passed, raises a question that the pathway is not a public property in the sense of the provision of this section, the Magistrate trying the case should be careful not only to decide as to whether the pathway in question is situated on a private land or if it is for public use, but he should, even when the claim of the objector is not substantiated, find whether the claim is bond fide or it is set up only to oust the jurisdiction of the Court. If the Magistrate finds that the claim which is set up is a mere pretence, he should then proceed to pass a final order and make the Ride issued by him absolute. If, however, he finds that the claim, although not substantiated, is not a mere pretence and is not raised to oust the jurisdiction of the Court, but that it is raised bond fide he should stay his hand and refer the party to the Civil Court. And if the party, within a reasonable time, does not have recourse to the Civil Court, the Magistrate may then proceed to make the Rule absolute. In the present case the objector, who is the petitioner before us, had contended that the pathway in question was a private property, and that only the neighbours and acquaintances had been using it in a permissive way. The question is whether this contention on the part of the objector is a bond fide contention or not. From the findings of the lower Court it is clear that the pathway in question is close to the objector's house. It is apparent from the judgment of the lower Court that the path in question has not been shown as a pathway in the map prepared by the Settlement Department. Regard being had to the above two facts. I think it was necessary for the lower Court to have come to a finding as to whether the claim set up by the objector was a mere pretence or whether it was bond fide. In this view I am supported by a number of authorities of this Court, viz., the cases of Belat Ali v. Abdur Rahim (1903) 8 C. W. N. 143., Malukdhari Tewari v. Hari Madhab Das (1904) 9 C. W. N. 72., Luckhee Narain Banerjee v. Ram Kumar Mukherjee (1888) I. L. R. 15 Cole. 564, and Preo Nath Dey v. Gobordhone Malo (1897) I. L. R. 25 Calc. 278.
2. For the above reasons, I would set aside the order complained against and make the Rule absolute. I would further direct that the lower Court should try the case from the point reached on the 13th January 1914, and dispose it of according to law.
3. Teunon J. Having regard to the long series of decisions in which this Court has hold that when a person called upon to show cause under Section 133 of the Criminal Procedure Code raises a question of title, the trying Magistrate must decide whether that question has been raised in good faith, I am prepared in the present case, without agreeing in all the reasons advanced by my learned colleague, to assent to the order proposed by him.