Sharma, J.—This is a reference by the learned Additional Sessions Judge, Bundi, recommending that the order of the Sub-Divisional Magistrate, Bundi, dated the 28th of January, 1954,making his conditional order under sec. 133 of the Criminal Procedure Code, absolute, against the applicants, Madan Singh and Shrimati Kanwarbai, be set aside. 2. Parties have not appeared. I have gone through the judgments of both the lower courts as well as the record of the case. The learned Additional Sessions Judge is perfectly justified in saying that the learned Sub-Divisional Magistrate was wrong in proceeding under sec. 137 of the Criminal Procedure Code before complying with the provisions of sec. 139(A). Under sec. 139(A), where an order is made under sec. 131 for the purposes of preventing obstruction, nuisance or danger to the public in the use of any way.......the Magistrate, shall, on the appearance before him of the person against whom, the order was made, question him as to whether he denies the existence of any public right in respect of the way, river,channel or place and if he does so,the Magistrate, shall, under sec. 137 or sec. 138, inquire into the matter. In this case, no such question as is required by sec. 139(A) was put to the applicants, although they raised the point in their written statement that the land in dispute was not the public property but was the private property of the non-applicant. The learned Magistrate did not inquire into the matter as required by sec. 139(A). It was, therefore, clearly a mistake on the part of the Magistrate to proceed under sec. 137 without complying with the provisions of sec. 139(A). It was held in the case of Uma Kanta Chatterjee vs. Kalipada Chow-dhury(l). "Where in proceedings under sec. 133, Criminal P.C., the opposite party denies the existence of a public right in respect of the land in question, it is the duty of the Magistrate to hold an enquiry under sec. 139-A with a view to ascertaining whether there is any reliable evidence in support of the denial on the part of the opposite party, and to record a clear finding on the point before proceeding further. He cannot make his original order absolute under sec. 137 without recording any finding under sec. 139-A." In the case of Mst. 139-A with a view to ascertaining whether there is any reliable evidence in support of the denial on the part of the opposite party, and to record a clear finding on the point before proceeding further. He cannot make his original order absolute under sec. 137 without recording any finding under sec. 139-A." In the case of Mst. Ram Kali vs. Kripa Shanker(2), also it was held that— "Where a Magistrate passes an order under sec. 137 without holding any proceedings under sec. 139-A, but based on his own observation and documents filed, his order is ultra vires. 3. A similar view was taken by the Lahore High Court in the case of Ranumal vs. Emperor(3). This Court also in the case of Jai Kishan vs. The State (4) held that a Magistrate cannot proceed under sec. 137 without first complying with the provisions of sec. 139(A). Thus there is abundant authority in support of the view taken by the learned Additional Sessions Judge. 4. The reference is accepted, the order of the learned Sub-Divisional Magistrate dated the 28th January, 1954, making his conditional order under sec. 133 Criminal Procedure Code absolute is set aside and he is directed to decide the case in accordance with law after first complying with the provisions of sec. 139(A).