1. The subject-matter of the case to which this reference relates is a strip of land which has been described in the proceedings drawn up under Section 133, Criminal P.C., as
the northern flank of the road in plot No, 1811 used by the public as a right of way at Dakshineswar.
2. The alleged obstruction consists of certain huts which have been erected on the said land by opposite party 2 as a lessee under opposite party 1 who is the Secretary of the Board of Trustees of the Dakshineswar Debuttar Estate. The first party is the owner of a plot of land situated immediately to the north of plot No. 1811, and his main grievance as set forth in his petition is that the erection of the huts in question has obstructed his road frontage. In the police report on the petition of the first party it is further stated that the public visiting the Dakshineswar temple are in the habit of using the road in plot No. 1811, and that the erection of huts by opposite party 2 on the flank of the road has caused inconvenience to them in certain respects. Opposite party 1 in his petition showing cause has denied the existence of any public right in plot No. 1811, and it is further stated in that petition that although the public visiting the temple are in the habit of passing over a portion of the land in plot No. 1811, they only do so with the leave and license of the trustees of the Debuttar Estate, and not as of right. In these circumstances, it was the duty of the Magistrate to hold an enquiry under Section 139-A, Criminal P.C., with a view to ascertaining whether there was any reliable evidence in support of the denial on the part of the opposite party of the existence of any public right in respect of the land in question and to record a clear finding on the point before proceeding further. If his finding was to the effect that there was reliable evidence in support of the denial of the opposite party, he was bound to stay proceedings until the matter of the existence of the alleged public road had been decided by a competent civil Court. If on the other hand he found that there was no reliable evidence in support of the denial of such a right, then and then only was he entitled to proceed further and to deal with the matter under the provisions of Section 137, Criminal P.C. What the learned Magistrate actually did was to examine the papers produced by both sides and then, without recording any finding under Section 139-A, to make his original order absolute under the provisions of Section 137, relying mainly on an entry in the Record of Eights to the effect that plot No. 1811 was a public road. It is not clear whether the Magistrate thought that he was holding an inquiry under Section 139-A, but even if he did it seems to me that the inquiry made by him was not a sufficient compliance with that section. He did not arrive at any finding to the effect that there was no reliable evidence in support of the denial of the existence of any public road by the opposite party and in my opinion the materials before him were not sufficient to justify such a finding. The whole of plot No. 1811 has been recorded as the property of the Dakshineswar Debuttar Estate, and whatever may be the legal position with regard to the portion of the plot which is actually used as a road, it is clear that the mere fact that the whole of the plot had been recorded as a public road is not of itself sufficient to rebut the presumption that the trustees were (at any rate so far as the roadside land was concerned) entitled to exercise their full rights as proprietors and to deal with the land in question in whatever manner they thought fit. Be that as it may, it appears that no proper inquiry was held under Section 139-A, and that no finding was recorded under that section, and this being so the order made under Section 137 must be held to have been made without jurisdiction.
3. In these circumstances, I would accept the reference and set aside the order made by the Magistrate under Section 137, Criminal P.C., as recommended by the learned Sessions Judge.
4. I agree.