Banerjee and Wilkins, JJ.
1. This is a rule calling upon the Magistrate of the district to show cause why the order complained of in this case should not be set aside upon the ground that the Magistrate who made it had no authority to investigate the matter and to make the conditional order passed by the Sub-Divisional Officer absolute.
2. The order complained of is one passed by a second class Magistrate under Section 137 of the Code of Criminal Procedure, making absolute an order under Section 133 passed by the Sub-Divisional Officer for the removal of certain obstructions caused by the petitioners in a place which was alleged to be a public thoroughfare.
3. The grounds upon which we are asked by the learned Vakil for the petitioner to set aside the order are: first, that the Magistrate who made the conditional order absolute under Section 137 of the Code of Criminal Procedure had no authority to do so as he was a Magistrate with second class powers; and, secondly, that he had no authority to make the conditional order absolute in this case as there was here a bona fide claim of private right raised by the petitioners as regards the land in dispute.
4. As to the first ground, the penultimate paragraph of Section 133 of the Code distinctly provides that the Magistrate who makes the order under the section may direct the person against whom it is issued ' to appear before himself or some other Magistrate of the first or second class at a time and place to be fixed by the order, and move to have the order set aside or modified in manner hereinafter provided.' The section itself, therefore, clearly authorizes a second class Magistrate to hear the objections of the party against whom an order under the section is made. It is quite true that clause (b) of Section 135 provides that, where a party against whom an order under Section 133 is issued applies for the appointment of a jury to try whether the order is reasonable and proper, such application is to be nude to the Magistrate by whom the order under Section 133 was passad; but the express mention of ''the Magistrate by whom it' (i.e., the order) ' was made ' in clause (b) itself goes to show that it is only when the party against whom the order is issued wants to avail himself of the alternative of having a jury appointed that his application must be made to the Magistrate by whom the original order was issued. Section 137, however, under which the order now complained against was made, does not require that the Magistrate who is to bear the objections and take evidence must be the Magistrate by whom the original order was made, but simply provides that if the party against whom the order is made appears and shows cause against the order, ' the Magistrate shall take evidence in the matter. ' That, in our opinion, evidently means the Magistrate to whom the proceedings may be referred under the penultimate paragraph of Section 133; and, as that section distinctly provides that the case may be referred to a Magistrate of the second class, we think the mere fart of the Magistrate who made the order under Section 137 being a second class Magistrate, does not show that he had no authority to make the older complained against. We may add that this view is in accordance with the decision of the Madras High Court in the case of In re Narasimha, (1886) I.L.R. 9 Mad. 201.
5. It remains then to consider the second ground upon which our interference is asked. The learned Vakil who appears to show cause contends that it is not open to the petitioner to raise the second ground, having regard to the terms of the rule. No doubt the mattar is open to argument; but we are inclined to think that the rule, as it stands, is broad enough to admit of the second ground being urged. We may add that our taking this view cannot be said to have any prejudic al effect, as the learned Magistrate of the district who has shown cause in the explanation submitted by him, entered into matters relevant to the second ground as well as those concerned with the first.
6. Now, the law on the subject is laid down in a series of cases of which we need only refer to two, viz., Queen-Empress v. Bissessur Sahu (1890) I.L.R. 17 Cal. 562; (sic)Luckheenarain Banerjee v. Ram Kumar Mukherjee (1888) I. L. R. 15 Cal. 564. It is this, that when a question of title is bona fide raised, the Magistrate ought not to make an order under Sections 133 and 137, but should allow an opportunity for the determination of the question by a Civil Court. The claim of title must, however, be bona fide and not a mere pretence to oust jurisdiction; and it is for the Magistrate to say whether the claim is a bona fide one or a pretence.
7. In the present case the Magistrate who made the conditional order absolute under Section 137 has not considered the question whether the claim of title raised is a bona fide claim or a mere pretence. He has, it is true, found that the land in dispute is part of a public thoroughfare; but that finding does not dispose of the question whether the dispute raised by the petitioners before us was or was not a bona fide dispute as to title; and one reason which induces us to take this view is that, although one of the petitioners urged that he had raised the embankment for over twelve years and had been in undisputed possession of it since then, and so the question of obstruction could not arise now, this is all that the learned Magistrate says with reference to this objection: ' The last argument, however, cannot stand in the face of the ruling in The Municipal Commissioners of Calcutta v. Mahomed Ali (1871) 7 B. L. R. 499 where it is laid down that no length of enjoyment can legalize a public nuisance.' The Magistrate does not find that the allegation about the petitioners' enjoyment for twelve years and upwards is a mere assertion without any foundation for it; but he simply says, whether that was true or not would not affect the question. We are of opinion that he should have gone into the question and seen whether the fact of long possession did not give to the objection of the petitioners the character of a bona fide dispute as to title such as should have the effect of ousting the Magistrate of his jurisdiction under Sections 133 and 137.
8. As the Magistrate has not considered the case from this point of view, we think the proper course to take in this case would be that taken by this Court in the case of Queen-Empress v. Bissessur Sahu (1890) I.L.R. 17 Cal. 562 to which we have already referred; and we accordingly set aside the order under Section 137, and direct that the Magistrate, after notice to both parties, do investigate the case de novo. If he is satisfied that the contention of the petitioners that the way is not a public way is a bona fide one, he should set aside the conditional order. If, however, he finds upon proper reasons that the contention is not bona fide, he should affirm that order.