B. ANANTHA SOMAYAJI v. STATE OF MYSORE — 1972 DIGILAW 53 (KAR)

( 1 ) THIS petition is directed against the order dt. 27-2-1971 passed under s. 139a on the Code of Criminal poceaure, by the Addditional Munsiff-cum- magistrate, Bantwal in MC. No. 2 of 1970. ( 2 ) THERE is one Mahalingeshwara Swamy Temple situated in survey nos. 142/1b plus 2 on Baniwal Kasana village, it is trust property. The petitioner is th managing trustee,. tie commenced constructing a compound wail round about this temple and within one area or the land survey no. 142/1b plus 2. Some members of the public of Baniwal Kasaba objected, and complained to the buo-Uivisionai Magistrate" that they had a right ol way over this property and the petitioner, by constructing this compound wail, was causing obstruction to their said right oi way, and prayed that action be taken under Chapter X of the Code for getting the obstruction removed. It appears that the Sub-Divisional Magistrate, Mangalore, asked the police to enquire into the matter and submit a report. ( 3 ) ON a report being duly submitted, he found that it was in support of the complaint made by the public of Bantwal Kasaba village and, therefore, issued a conditional order under S. 133 (1) of the Code. By that order he directed the petitioner to appear before Taluka Magistrate, Bantwal, and show cause why the order should not be made absolute and the obstruction be got removed. Further on it appears that the petitioner appeared before the Taluka Magistrate where the case was numbered as MC. 1 of 1968. He subsequently moved this Court for transfer of the proceedings to a Judicial Magistrate and secured an order accordingly. The matter was transferred to the Court of the Additional Munsiff-cum-Magistrate, bantwal, where it was re-numbered as MC. 2 of 1970. The petitioner appeared there and put forward a denial in regard to the existence of the right of way claimed by some members of the public of Bantwal Kasaba village. The learned Magistrate held an enquiry under S. 139a of the code because of such a denial on the part of the petitioner. The petitioner apart from examining himself, produced documentary evidence in the shape of Exts. Rl to R12. Ext. R1 is Adangal extract, which is equivalent to extract of survey settlement register, in regard to the land in question and the surrounding lands. Ext. R2 to Ext. The petitioner apart from examining himself, produced documentary evidence in the shape of Exts. Rl to R12. Ext. R1 is Adangal extract, which is equivalent to extract of survey settlement register, in regard to the land in question and the surrounding lands. Ext. R2 to Ext. R10 are extracts from field measurement register. Ext. R. 11 is another Adangal extract pertaining to the land in question and the surrounding lands. Ext. R12 is a copy of the consolidated village map issued by the village Accountant of Bantwal. As against this material, certain documents but no oral evidence, were produced on behalf of the State. ( 4 ) THE contention of the petitioner in short was that the documents exts. R1 to R11 showed all the existing path-ways in the land in question and the neighbouring lands, and that the consolidated map of the village, the extract of which is at Ex. R12, also showed all the existing path-ways (marked in red pencil) and these would lead to an inference that no such way existed on the land in question. It was also contended before the lower Court that the powers of the Court in enquiry under S. 139a are limited and when reliable evidence in support of denial of the right of way came to be produced, the Court was in law bound to stay the proceedings until the matter of existence of such right of way came to be decided by a competent Civil Court and, therefore, the learned Magistrate ought to stay the proceedings. ( 5 ) IT was contended on behalf of the State that the evidence produced by the petitioner was not 'reliable evidence' within the meaning of the said expression in S. 139a of the Code and, therefore, the Court could hold that the evidence produced by the petitioner in support of the denial of right of way put forward by him. was not reliable, and proceed to pass an order accordingly under S. 139a of the Code and then proceed to hold enquiry under Ss. 137 and 138 of the Code. ( 6 ) THE learned Magistrate has, on agreeing with the principle of law eunciated in the various decisions cited before him, proceeded to consider the decision in Kamala v. State, AIR 1953 All. 523 . He has held that Exts. 137 and 138 of the Code. ( 6 ) THE learned Magistrate has, on agreeing with the principle of law eunciated in the various decisions cited before him, proceeded to consider the decision in Kamala v. State, AIR 1953 All. 523 . He has held that Exts. R1 to R11 do not constitute 'reliable evidence' within the meaning of the said expression in S. 139a of the Code and, therefore, there was no reliable evidence in support of the denial of right of way as put forward by the petitioner. It is at this stage that this revision petition has been filed challenging this order passed by the learned Magistrate. Sub-secs. (1) and (1) of S. 139a of the Code, read as follows:"139a (1) Where an order is made under S. 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, 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, liver, channel or place, and if he does so the Magistrate shall, before proceeding under S. 137 or S. 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in S. 137 or S. 138, as the case may require. " ( 7 ) THIS section came to be newly inserted in the Code by the Code of Criminal procedure (Amendment) Act, (XVIII) of 1923. Prior to this enactment, the Courts had, by a series of judicial decisions, engrafted on the Code a law that, when generally stated, where the party proceeded againpt set up a claim of title in respect of the way, river, channel or place in question, the Magistrate had to determine whether such claim was bonafide or mala fide or whether it was a mere pretence oi a claim and in case he concluded that it was bonafide, to refer the parties to the Civil court. The last of this series of decisions was pronounced by the Calcutta hign Court in Manipur Dey v. Bindhu Bhushan Sarkar, ILR 42 Cal 158. It was laid down therein that when a party, against whom an order under S. 133 of the Code was contemplated, appeared and raised the question that a pathway, alleged to have been unlawfully obstructed, was not a public but a private one, the Magistrate should not only decide whether it is public or private, but he should determine whether the claim is bonafide or a mere pretence set up only to oust the jurisdiction of the Court, and if the magistrate found that the claim was a mere pretence, he could proceed to pass a final order, out if he found that the claim, though not substantiated, had been raised bonafide, he should stay his hand and refer the party to the Civil Court and if the party did not have recourse to such court' within a reasonable time, the Magistrate could then proceed to make the order absolute. After the pronouncement of this decision by the High Court of Calcutta, it was thought fit to introduce S. 139a by an amendment by Code of Criminal Procedure (Amendment) Act, XVIII of 1923. At that time, the Select Committee by Clause (25) observed as follows:"the principal question in connection with this clause is whether, as provided in the bill, questions or rule in relation to rights of way and the like should, for the purposes of the Chapter be finally decided, by the Magistrate, or whether the almost uniform decisions of the high Court, which lay down that the Magistrate must stay proceedings, if he is satisfied that the question has been raised bona fide, should be followed. We prefer to accept the latter view as laid down in 42 C. 158. " ( 8 ) IT is, therefore, certain that the purpose for which S. 139a, especially sub-sec. (2) has been incorporated in the Code, is to see that Criminal Courts exercising powers under Chapter X of the Code, do not function as competent civil Courts and decide civil rights between the parties, especially questions ot title in relation to rights of way and the like. (2) has been incorporated in the Code, is to see that Criminal Courts exercising powers under Chapter X of the Code, do not function as competent civil Courts and decide civil rights between the parties, especially questions ot title in relation to rights of way and the like. The scneme of chapter X of the Code is apparently to vest Criminal Courts with powers in regard to removal ol obstructions or nuisances and not to empower them to decide substantial civil rights between parties. It is with a view to achieve such an object that almost all the High Courts, even in the absence of S. 139a in the Code, held that the Magistrate must stay proceedings and refer the parties to the Civil Courts in case he was satisfied that the question had been raised bona fide and not as a mere pretence to oust the Court of its jurisdiction. It is in this light that the expression "reliable evidence" used in sub-sec. (2) of S. 139a of the Code is to be understood. ( 9 ) WHAT is ' reliable evidence' can be easily seen to vary according to the facts in each case. There can be no doubt that such evidence must be legally admissible and, if unrebutted, should be prima facie sufficient to support the denial of the claim put forward by the party against whom a conditional order under S. 133 (1) of the Code has been passed. It cannot certainly be irrelevant evidence. Such evidence need not by itself be clinching on the point in question. It would, in my opinion, fall within the meaning of the expression ' reliable evidence' if it is of such a degree as to require scrutiny, analysis appreciation and weighing with the evidence produced by the opposite party. Sub-sec. (2) of S. 139a of the Code does not refer to the evidence produced by the other party. It, therefore, is evident that a Magistrate holding enquiry under S. 139a of the Code is not to appreciate the evidence produced by the contending parties. When such a stage is reached, he has to stay his hands till the matter of existence of such right is decided by a competent Civil Court. ( 10 ) A catena of deciscns of various High Courts lends ample support to the above view. When such a stage is reached, he has to stay his hands till the matter of existence of such right is decided by a competent Civil Court. ( 10 ) A catena of deciscns of various High Courts lends ample support to the above view. In these decisions it has been held that (i) the expression 'reliable evidence' means, evidence on which a competent Court can place reliance and that it does not mean evidence which definitely establishes the right claimed; (ii) the said expression means evidence of a reliable person and the Magistrate is not to weigh the evidence for coming to the conclusion whether the alleged right does or does not exist; and (iii) the expression 'reliable evidence' is evidence, which when considered exparte, is genuine and tends prima facie to support the existence of the right claimed. ( 11 ) IN Govinda Goundan v Ayi Goundan, AIR 1939 Mad. 465 , it was held that when it was found that reliable evidence had been produced or adduced in support of the denial, the Magistrate had no alternative but to stay his hands till the existence or otherwise of such right of way came to be decided by a competent Civil Court. In Srikantiah v. H. A. Bhoparaj, (1963)1 Mad. L. J. 418, it is laid down that the duty of the Magistrate holding an enquiry under S. 139a of the Code is to consider whether the claim put forward by the person against whom a conditional order is made, is not bona fide, but a mere pretence to oust the jurisdiction, and on being satisfied about it to proceed with the case under S. 137 or S. 138 of the Code. In the said case, the evidence produced by the party denying the claim, consisted of a village plan ,and a sale-deed in both of which the existence of the way in question was not shown. The High Court held that this evidence was 'reliable evidence'. In Jai Ram Singh v. Bhuley, AIR 1963 All. 27 it is laid down that the magistrate is not to weigh the evidence produced by both the parties in an enquiry under S. 139a of the Code. In that case, the evidence produced in support of the denial was that of three witnesses. The Magistrate held that it was reliable evidence and stayed the proceedings. 27 it is laid down that the magistrate is not to weigh the evidence produced by both the parties in an enquiry under S. 139a of the Code. In that case, the evidence produced in support of the denial was that of three witnesses. The Magistrate held that it was reliable evidence and stayed the proceedings. That conclusion was ultimately upheld by the High Court. In Atul Krishna sahoo v. State, AIR 1966 Cal. 215 the evidence produced in support of the denial was recently published settlement record of rights. That did not show the existence of public right in respect of the plots concerned in the case. ( 12 ) THE Magistrate was not satisfied that the officialy published record of rights was a piece of 'reliable evidence' within the meaning of the said expression in S. 139a of the Code, and proceeded to dilate over the material before him and arrive at a conclusion. The High Court held that on the face of such evidence, the Magistrate had to consider the settlement of record of rights as reliable evidence and, therefore, the proper course for him to take was to pass an order for stay of the proceedings till the disposal of the matter by a Civil Court. Similar is the view expressed in rukmini Raman v. Herdeo, AIR 1970 Pat. 207 . In that case the person, proceeded against under S. 133 of the Code, denied the existence of any right in the public to use the ridge in question. The Magistrate himself proceeded to decide the question of existence of the public right after considering the evidence, documentary and oral, produced by the parties. It was held that the Magistrate had proceeded beyond the jurisdiction vested in him and that he ought to have stayed the proceedings as laid down in S. 139a (2) of the Code. ( 13 ) THERE can be no doubt that Exts. R1 to R12 can be regarded as reliable evidence. The learned Magistrate has held that Exts. R1 to R11 are not reliable evidence by applying the facts found in Kamala's case (1 ). In that case the question was whether the right of way existed in a particular area. In support of the denial of the existence of the right of way, a copy of the Patwari's record was produced. R1 to R11 are not reliable evidence by applying the facts found in Kamala's case (1 ). In that case the question was whether the right of way existed in a particular area. In support of the denial of the existence of the right of way, a copy of the Patwari's record was produced. That record did not contain any entry about the existence of the public way in dispute. But, it happened that the party denying the existence of the right, admitted that two other roads which in fact existed at the place in question had not been shown in the copy of the Patwari's record. The Magistrate held that in view of this admission, the copy of the Patwari's record could not be regarded as 'reliable evidence' within the meaning of the said expression in S. 139a of the Code. The High Court upheld this view. At the same time, the High Court, made it abundantly clear that the view expressed by it was in consonance with the decisions of Allahabad and Calcutta high Courts on the interpretation of subsesec. (2) of S. 139a of the Code. ( 14 ) THE learned Magistrate has, after referring to Ext. R12 the consolidated map of the village and the evidence of the petitioner, observed that though in Ext. R12 there is a road shown lying in survey No. 145/22 and survey No. 145/16, the petitioner himself has admitted that that road is not mentioned in Exts. R1 to R11. It is on this basis that he has held that exts. Rl to Rll cannot be regarded as 'reliable evidence' as has been similarly held in Kamala's case (1 ). It is necessary to observe that in many cases it would not be appropriate to apply the inferences drawn on a set of facts as found in reported decisions to another case In the case on hand, to hold that Exts. R1 to R11 are not 'reliable evidence' is the same as holding that no reliance can be placed on these documents. That amounts to assessment of the evidentiary value of Exts. R1 to R1. That is exactly what is prohibited in sub-sec. (2) of S. 139a of the Code. The evidentiary value of Exts. R1 to R11 also depends on the evidentiary value of Ext. R. 12 and the evidence of the petitioner. That amounts to assessment of the evidentiary value of Exts. R1 to R1. That is exactly what is prohibited in sub-sec. (2) of S. 139a of the Code. The evidentiary value of Exts. R1 to R11 also depends on the evidentiary value of Ext. R. 12 and the evidence of the petitioner. In order to decide whether a right of way exists or not, all these pieces of evidence will have to be looked into, analysed and appreciated. The different pieces cannot be scrutinised and analysed in an isolated manner. Moreover, the learned magistrate has nowhere considered whether Ext. R12 is 'reliable evidence' or not, within the meaning of the said expression in S. 139a (2) of the code. The learned Government Pleader appearing on behalf of the State was not, on the facts and material available in this case, able to show that ex. R12 cannot be regarded as 'reliable evidence'. In view of these reasons, the conclusion arrived at by the lower Court cannot be sustained in law. So long as Ext. R13 remairs as reliable evidence in this case, the power of the Magistrate to record a finding in regard to the existence of the right of wav will not be available and it would be incumbent on him to stay the proceedings till the matter of the existence of such right is decided by a competent Civil Court. ( 15 ) IN the result, this petition is allowed. The order passed by the Additional munsiff-cum-Magistrate, Rantwal, on 27-9-1971 in MC. No. 2 of 1970. is set aside. The Magistrate is directed to stav the proceedings before him under S. 139a (2) of the Code until the matter of the existence of such right of way is decided by a competent Civil Court. --- *** --- .