Norris and Macpherson, JJ.
1. In this case Kharag Narain Singh and others complained to the District Magistrate under Section 133, Code of Criminal Procedure, against Bissessur Sahu, Ram Sarun Sahu, and Piyar Chand Sahu, alleging that they had obstructed a certain public way by placing bricks and erecting a shed thereon. The District Magistrate ordered a police enquiry to be made. The police reported that Bissessur and Ram Sarun had obstructed a path by a mud wall, the stacking of bricks and the erection of a shed. The District Magistrate thereupon issued an order under Section 133, Code of Criminal Procedure, requiring Bissessur and Ram Sarun to remove the obstructions, or to appear and show cause against such order. The defendants filed written statements; Bissessur denied the existence of the path obstructed; Ram Sarun admitted its existence, but denied having obstructed it.
2. The Deputy Magistrate, to whom the case was referred, visited the spot and examined a number of witnesses and found that the path in question is in existence, that it is a public one, and that it has in part been obstructed by the defendant Bissessur.
3. During the progress of the investigation before the Deputy Magistrate an attempt was made to compromise the case, and a petition of compromise was filed, in which Bissessur admitted that the path in question was a public one. The Deputy Magistrate refused to allow the case to be compromised, 'because the path is a public one, and the parties concerned in this case had no right to make any change in its width and allow the wall to stand on a part of it.'
4. The Deputy Magistrate confirmed the conditional order of the Magistrate, and directed Bissessur to remove the obstructions complained of within seven days.
5. Bissessur obtained a rule from the Sessions Judge calling on the Deputy Magistrate and the complainants to show cause why the order of the Deputy Magistrate should not be set aside.
6. On the argument of the rule, Bissessur contended that under several rulings of the High Court, viz., Basaruddin Bhuiah v. Bahar Ali I.L.R. 11 Cal. 8, Askar Mea v. Sabdar Mm I.L.R. 12 Cal. 137, and Lal Miah v. Nazir Khalashi I.L.R. 12 Cal. 696, the Magistrate was not competent to determine the question as to whether the pathway was a public or private way.
7. The Sessions Judge has referred the case to us with a recommendation that the Deputy Magistrate's order should be set aside, on the ground that there was a bond fide question raised by Bissessur as to whether the path in question was a public way or not, and that the cases cited showed that when such a question was raised, there was no jurisdiction to make an order under Section 133, Code of Criminal Procedure.
8. We quite agree with the Sessions Judge that the Deputy Magistrate ought not to have made the order if there was a bond fide contention on Bissessur's part that the path was not a public way.
9. In Luckhee Narain Banerjee v. Ram Kumar Mnkherjee I.L.R. 15 Cal. 564. the law is thus laid down: 'When such a question is bond 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. The claim of title must, however, in order that it should be allowed to have this effect, be bond fide, and not a mere pretence to oust jurisdiction, and it is for the Magistrate to say whether the claim be bond fide or a mere pretence.'
10. We entirely concur in this view of the law.
11. We therefore set aside the order of the Deputy Magistrate, and direct him, after notice to both parties, to investigate the complaint de novo. If he is satisfied that the defendants' contention that the way in question is not a public way is bond fide, and not a mere pretence, he should set aside the Magistrate's conditional order. If he finds, having reasonable and probable cause for his decision, that the contention is not bond fide, he should confirm the conditional order.