1. It is a rule of English law that a bona fide claim of title ousts the jurisdiction of Justices proceeding in a summary way; this does not depend on enactment, but is a qualification which the law itself raises in the execution of penal statutes, save when the terms of the statute, under which the Justices proceed, show that the Justices are not to hold their hands even if a right be set up.
2. Under the Criminal Procedure Code of 1872 it was held by this Court, in revision, that in proceedings under Section 521 of that Code, which is similar to Section 133 of the present Code, if a claim of private right were set on in respect of what was alleged to be a thoroughfare or public place, the Magistrate should not mike any order under Section 521 and the following sections, but should proceed under Section 532, so that the person claiming such private right should have an opportunity of having the question raised by him duly enquired into and determined; it being no part of the duty either of the Magistrate or of a jury, acting under Section 526 of that Code, to determine the rights of parties in property--In re Chundernath Sen 5 C. 875 : 6 C.L.R. 379 and other cases.
3. Section 147 of the present Code, which corresponds to Section 532, is more limited in its operation, being confined to cases in which a dispute likely to cause a breach of the peace exists. But no such alteration has been made in the terms of Section 133 et seq. which corresponds to Section 521 et seq. of the old Code as would make the decisions upon these sections of the old Code inapplicable to those of the present; and in accordance with those decisions, it has been held by this Court that a Magistrate proceeding under the sections of the present Code ought not, when a bona fide claim of title is set up, to proceed to make an order, but should allow the party setting up such a claim to substantiate it, if he can do so, by civil proceedings. The ground upon which these decisions have proceeded is that there is no provision made in Chapter X of the Code for an enquiry into a disputed question of title; and that it cannot be held to have been the intention of the Legislature that questions of this nature raised bona fide should be finally decided in a summary manner and to the exclusion of any recourse to the Civil Courts. These decisions go, not actually to the jurisdiction of the Magistrates, as the English rule referred to does, but rather to the mode in which, in revision, this Court has held that the Magistrates should exercise their powers, following the principle of the English rule so far as may be. A decision of a Full Bench of this Court--Chuni Lall v. Ram Kishen Sahoo 15 C. 460 soon to be delivered-will lay down the manner in which the question of title, such as appears to have arisen in this case, can be brought before a Civil Court. We have deferred judgment in these cases until the question in that ease should have been decided. In this case the defendant appears to have asserted his right to the land in question, free from any right of way over it, in the public, or any part of the public.
4. When such a question is bona fide raised, the Magistrate ought not to make an order under these sections of the Code, but should allow an opportunity for the determination of the question by the Civil Court.
5. The claim of title must, however, in order that it should be allowed to have this effect, be bona fide, and not a mere pretence to oust jurisdiction, and it is for the Magistrate to say whether the claim be bona fide or a mere pretence. The Magistrate cannot, of course, in determining this, decide contrary to the facts that the claim is not made bona fide, but must have reasonable and probable cause for his decision, which will be subject to revision by this Court. The rule, however, that a bona fide claim of title ought not to be determined in summary proceedings before the Magistrate is subject to this, that the objection must be raised by the defendant at or before the hearing; he cannot be heard afterwards to object to the result of proceedings to which he has deliberately submitted himself.
6. A fortiori, if the defendant expressly consents that the question of the propriety of the order shall be considered, and with it the question of right, he cannot object, before the Magistrate or afterwards, in this Court, in revision, to the Magistrate's order. We say nothing here as to the effect of an order so made upon any civil proceedings in which he might afterwards seek to establish his right-see per Field, J., Mutty Ram Sahoo v. Mohi Lall Roy 7 C.L.R. 443 (444) : 6 C. 291. As to the considerations which should guide the Magistrate in determining whether a claim of title is bona fide made, it would not be safe to attempt to lay down any general rule, save that there must be some show of reason in the claim, and it is not sufficient unless the defendant satisfy the Magistrate that there is some reasonable ground for his assertion of title. The claim must be one that can legally exist, and consequently to mention two English cases, from Paley Paley on Summary Convictions, 5th Ed,, pp. 138, 139 defendant was not allowed to oust the jurisdiction of the Justices by claiming a right as one of the public to fish in a non-navigable river, though, if ha had made such a claim with respect to one where the tide ebbs and flows, it might have been sufficient. And so a claim by a defendant as one of the public to shoot over certain land when in fact the public had hitherto shot without interruption was held insufficient, as no such right is known to the law. And in another case it was held that the mere assertion of a right made by the defendant's attorney, in writing, but without stating any grounds for it, was not enough.
7. In a recent case this Court was asked to interfere, in revision, with a Magistrate's order for the removal of an obstruction from a public road, on the ground that the defendant had made a bona fide claim of right. It appeared that the piece of land in question had been recently fenced in by the defendant, that before that it had been used as a road, and had been repaired at the cost of the Road Ce3s Committee. No ground of title to the land was shown on the part of the defendant ,save his attempt recently made to appropriate the land, and this Court refused him a rule.
8. These cases are referred to here, because it is desirable to point out that the action of the Magistrate under these sections is not to be trammeled by a mare assertion of right made without fair ground, or honest belief in it, or honest intention to support it.
9. The course which we hold that the Magistrate should follow in administering these sections where a claim of right is sat up is as follows:
He should consider, having regard to what has been said above, whether the claim is made bona fide; and if on a fair consideration of the matter, and remembering how scrupulously private rights should be respected, he thinks the claim not bona fide, he should record his reasons for thinking so, and decide the case without further reference to the claim. It is for the defendant to set it up, and unless he does so the Magistrate has nothing to do with it, and the defendant must set it up at or before the hearing.
10. Of course, if the Magistrate, on hearing the defendant, thinks his claim of right well founded, he will take no further proceedings; for in that case it will have been shown to him that Section 133 does not apply to the case.
11. If the Magistrate does not think this claim well founded, so far as he can judge, but considers that it is made bona fide, he should allow the defendant an opportunity of asserting it by civil proceedings. The existence of an intention or desire to do this is one test of bona fides-Reg v. Sand ford 30 L.T. 601. If the defendant does not within a reasonable time assert his right, the Magistrate may proceed. If the defendant does so, with success, the public right, which is the foundation of proceedings under Section 133, is either negatived or shown to be so doubtful that the Magistrate ought not to proceed further. If the defendant does not go into a Civil Court within a reasonable time or Jails there, the Magistrate may proceed.
12. Our observations is this judgment are of course directed to that part of Section 133 which related to the case now before us and deals with obstructions to public ways. We may observe that in cases in which danger to public health or safety is involved, we by no means suggest that the Magistrate is fettered, in the exercise of the powers given to him under these sections, by the considerations to which we have adverted.
13. Having referred to these general considerations, we proceed to express our judgment upon the case now before us. As will be seen from what we have said, the view expressed by the Magistrate in his excellent judgment in this case as to the propriety of a Magistrate's forming an opinion upon the bona fides of a claim of title when set up is, we think, correct. That is, we think, a necessary part of his duty in such cases, and in the present case we are of opinion that the Magistrate's decision that the claim of title set up here was not such a bona fide claim of title as ought to prevent his proceeding to make an order is one which we cannot dissent from. Taking all the circumstances before the Magistrate into consideration, the length of the occupation by the defendants, the absence of proof of title (for the morose deed was not, and could not be, put in), the proof of user up to a recent time, the existence of disputes between the rival parties in the village throwing some light on defendant's present acts, are all matters to be weighed in determining this question, and we think that under the circumstances what the Magistrate had before him was enough to justify him in coming to the conclusion that the claim of right was not bona fide raised, and we, therefore, let the order which is the subject-matter of this reference stand. We may add, however, that, if it be the case, notwithstanding the absence of proof of it, that the defendants really had a bona fide claim of right, although they had not made it appear that they had, they are not, as will be seen when the Full Bench judgment in Chuni Lall v. Ram Kishen Sahoo 15 C. 460 is delivered next week, without the means of resorting to the Civil Court should they desire to do so. When the judgment of the Full Bench has been delivered and printed, a copy of that judgment will be put up with these papers when they are returned to the District Judge.