JUDGMENT Thomas, C.J. - This a reference u/s 438 Code of Criminal Procedure. by the Additional Sessions Judge of Kheri recommending that the order passsed by the Magistrate u/s 137 Code of Criminal Procedure. be set aside and the applicant be ordered to have his rights determined by a competent Civil Court. 2. The evidence shows that there is a grove called Gotaiya Bagh situate in Lakhimpur which formerly belonged to one Ram Din and has recently been purchased by Lala Ram Narain of Lakhimpur at an auction sale when be started building a pucca boundary wall round the grove the residents of mobal Gotaiya Bagh, at least 20 in number, petitioned the Magistrate that Lala Ram Narain was obstructing a public way through the grove and be should be stopped from building the boundary wall. It was alleged that funerals and tazias" passed through the grove. 3. The Sub-Divisional Magistrate issued a notice to Ram Narain u/s 133 Code of Criminal Procedure. to remove the obstruction or to show cause against the said order. Lala Ram Narain in obedience to the order appeared in Court and denied the existence of the public right. The Magistrate then recorded evidence under the provisions of Section 139-A Code of Criminal Procedure. 4. Both parties examined a fairly large number of witnesses. Ram Din the former owner of the grove was also examined as a witness and he stated that for at least thirty years the people had used the rasta. Ram Narain himself admitted that dead bodies were taken through the grove and, there are huts in it, and I understand that there are some Chamars living in the grove. It is true that no public rasta is shown in the Municipal records or in the patwari's papers. The patwari admitted in his statement that there was an entry showing that there was a public path from the Idgah to No. 240, which is the grove in question. I do not think it would be necessary to show such a path in the village map. There is no doubt from the evidence adduced by the parties that a way passed through the grove. 5. The Sub-Divisional Magistrate on the evidence came to the conclusion that there was no satisfactory evidence in support of the denial made by Lala Ram Narain. There is no doubt from the evidence adduced by the parties that a way passed through the grove. 5. The Sub-Divisional Magistrate on the evidence came to the conclusion that there was no satisfactory evidence in support of the denial made by Lala Ram Narain. He, therefore, ordered that the parties should produce, evidence u/s 137 Code of Criminal Procedure. On the date of hearing the parties stated before the Magistrate that they did not wish to re-summon these witnesses but there evidence may be treated as evidence produced u/s 137 Code of Criminal Procedure. The Magistrate acceded to this request and treated that evidence as evidence recorded u/s 137 Code of Criminal Procedure. 6. The learned Judge in his referring order has made the following observation On (30-7-l945, the date fixed for recording evidence u/s 137, the counsel for the parties stated that the evidence oral and documentary already on the record may be read as evidence in the main case and they would not adduce any further evidence. In view of this no evidence under this section was taken by the learned Magistrate. The provisions of this section are mandatory. Where a party on whom a conditional order u/s 133 has been served appears and shows cause, the Magistrate is bound, before making the order absolute, to record evidence in the matter and give a judicial decision on the evidence so recorded. Thus he cannot make a conditional order absolute merely on the result of his local inspection. 7. In support of his view, the learned Judge relied on the case reported in AIR 1931 397 (Oudh) , In my opinion this case has got no bearing and does not help the Judge. In this case the Magistrate had not recorded any evidence under the provisions of Section 139-A Code of Criminal Procedure. but had proceeded to decide the case on his local inspection which certainly was illegal. The Magistrate in the present case wanted to record evidence u/s 137 Code of Criminal Procedure. but the parties did not want to produce any. No Court can force a party to examine or not to examine witnesses and in my opinion there was nothing illegal in the order of the Magistrate to treat the evidence recorded u/s 139-A as evidence u/s 137 Code of Criminal Procedure. but the parties did not want to produce any. No Court can force a party to examine or not to examine witnesses and in my opinion there was nothing illegal in the order of the Magistrate to treat the evidence recorded u/s 139-A as evidence u/s 137 Code of Criminal Procedure. I, therefore, do not agree with the view of the learned Judge that the Magistrate should have de novo recorded the evidence of the same witnesses u/s 137 whether the parties were willing or not. It seems to me that the whole object of making this reference is that the learned Judge does no believe the evidence adduced by the applicants in this case and in his opinion the evidence produced by the opposite-party that is, Ram Narain, is very reliable. That may be so but no Court is justified in making a reference to this Court on questions of fact. 8. The Learned Counsel on behalf of Ram Narain has argued that u/s 139A Sub-clause (2) Code of Criminal Procedure. It was the duty of the Magistrate under the circumstances of this case to have stayed the proceedings until the matter of the existence of such right had been decided by a competent Civil Court. This argument would have been perfectly sound if the Magistrate had believed the evidence produced by Ram Narain. Sub-clause (2) lays down that "If in such inquiry, the Magistrate finds that there is any reliable evidence in support of such denial he shall stay the proceeding The question of reliability has initiailly to be decided by the Magistrate himself and in this case, it cannot be said that the Magistrate has taken a perverse view of the evidence! because, as I have said above, it is admitted by Ram Narain and his witnesses that the rasta had been used for the last thirty years and dead bodies and tazias have been carried through the grove that there is a well and people draw water from it and that there is an abaci also. I am, therefore, of opinion that the view taken by the Magistrate is correct. This finding of course does not in any way affect Ram Narain's title which he will be at liberty to establish in the Civil Court in case he wishes to block the right of way. 9. I am, therefore, of opinion that the view taken by the Magistrate is correct. This finding of course does not in any way affect Ram Narain's title which he will be at liberty to establish in the Civil Court in case he wishes to block the right of way. 9. I, therefore, reject the reference and upholding the order of the Magistrate direst that the record be returned.