D. P. Sinha, J. This application arises out of an order dated the 23rd October, 1970 passed under section 139A of the Code of Criminal Procedure (hereinafter to be referred to as the Code) by Sri S.N. Thakur, Magistrate first class, Begusarai in a proceeding under section 133 of the Code in which the petitioners are second party and the members of the opposite party are the first party. 2. The facts of the case are these. On 20.10. 65. opposite party no. 1 filed a petition before the Sub-divisional Magistrate for action against the petitioners under section 133 of the Code on the allegations that there was a well in Khesra No. 596 in the village, in which the parties live, which had been used by the opposite party and the members of the public since long. It was further alleged that in the same plot there is a parti land situated contiguous south of the well which had all along been, used by the villagers as well as the opposite party but the petitioners had started obstructing them as also the members of the public from using the well and the parti land thereby they were bent upon committing breach of the peace and close the public way. 3. By an order dated 22.10.65, the magistrate asked the petitioners to show cause why a proceeding under section 133 of the Code should not be initiated against them. Show cause was filed by the petitioners on 30.11.65 and the case was adjourned from one date to another. A pleader commissioner was then appointed by the magistrate to inspect the locality in question and ascertain if there was any obstruction to the alleged public path. The pleader commissioner submitted a report but the magistrate felt that the report was not satisfactory and that it was necessary to ask the pleader commissioner to submit a fresh report after further enquiry with reference to the claim and counter-claim of the parties. On behalf of the opposite-party a prayer was then made that a conditional order for removal of the encroachment be passed. The petition was ordered to be put up on 10.1.69 for hearing. On behalf of the opposite-party a prayer was then made that a conditional order for removal of the encroachment be passed. The petition was ordered to be put up on 10.1.69 for hearing. In the meantime, the second report of the pleader commissioner dated 19.12.68 was received and on 28.12.68 which was a date not fixed in the case, the magistrate heard the lawyer for the opposite party, perused the pleader commissioner's report dated 19.12.68 and directed the issue of notices to the petitioners to remove the obstruction or to show cause by the date fixed. He also made a direction under section 142(1) of the Code asking the petitioners not to put any obstruction or making any change in the configuration of the 'spot' till the passing of the final order in the proceeding. The proceeding was thereafter transferred by the' Sub-divisional Magistrate to the court of another magistrate and then on 9.7.69. the petitioners show cause in which they denied the existence of the alleged public right. According to them, the entire area, covered by plots no.5961 and 5962, is their raiyati land and there was a civil suit relating to the said plots and it was held that 9 kathas out of survey plot no. 5962 was the raiyati land of the ancestors of the petitioners and the remaining area of plot no.5962 and the whole of plot no. 5961 were held to be raiyati lands of the ancestors or opposite party no. 1. Subsequently, however, the petitioners purchased the said lands from the opposite party by three sale deeds and came in possession thereof and there existed no public Rasta or well on the land. It was further stated that a dispute regarding the Rasta had arisen previously also and the matter was decided in a 'title suit being Title Suit No. 80 of 1963 and set at rest. it was held that there 'was no such Rasta. 4. In view of the denial of the public tight, the magistrate proceeded to hold an inquiry under section 139A of the Code. After having held the inquiry, he passed the impugned order dated 23.10.70 by which he held that there was no public right, and, therefore, he decided to proceed in accordance with the provisions contained in section 137 of the Code. This revision has been preferred against that order; 5. After having held the inquiry, he passed the impugned order dated 23.10.70 by which he held that there was no public right, and, therefore, he decided to proceed in accordance with the provisions contained in section 137 of the Code. This revision has been preferred against that order; 5. Learned counsel for the petitioners contended that the order of the learned magistrate was vitiated on two grounds, firstly, because, instead of holding the inquiry ex parte as required by the law, he allowed the witnesses to be cross examined by the opposite party and discarded the evidence adduced on behalf of the petitioners in denial of the public right on the basis of the statements made by the witnesses in their cross examination, which was wholly unwarranted under the law. His second contention was that the proceeding was 'quite vague in as much as it did not specify the land over which the public right was alleged to exist. 6. After having heard learned counsels for the parties and having perused the impugned order and the record of the case, I am convinced that both the contentions of the learned counsel for the petitioners are well-founded. 7. It is well settled that an inquiry under section 139 A of the Code is in the nature of a summary exparte inquiry and it is on the basis of the ex parte evidence adduced by the party denying the existence of the public right that the magistrate must come to a conclusion whether or not there is any reliable evidence in denial of the public right (see the decisions in the cases of Darsan Ram Vs. State of Bihar A.I.R. 1959 Pat. 8 and Munshi Gope Vs. Ragho Prasad Singh 1972 B.L.J.R. 699. The very nature of the inquiry which the magistrate has to hold under section 139 A of the Code indicates that if the party denying the existence of a public right has produced some reliable exparte evidence in denial of the right, the magistrate should stay his hands. The magistrate is not permitted to allow the other party either to adduce evidence in rebuttal or to cross examine the witnesses examined in denial of the public right. In the circumstances, it is quite clear that the magistrate fell into an error in allowing the opposite party to cross examine the witnesses of the petitioners. 8. The magistrate is not permitted to allow the other party either to adduce evidence in rebuttal or to cross examine the witnesses examined in denial of the public right. In the circumstances, it is quite clear that the magistrate fell into an error in allowing the opposite party to cross examine the witnesses of the petitioners. 8. It appears from the order sheet of the magistrate that on 25.8.70 the last witness on behalf of the petitioners was examined, cross examined and discharged and the case of the petitioners was closed and 9.9.70 was fixed for further hearing. Later, on the same day, a petition was filed on behalf of the petitioners for admitting two documents which were 30 years old, in evidence. The opposite party filed a petition objecting to the reception of the documents. The matter was put up on 9.9.70. On that date the opposite party applied for time and the magistrate ordered that the matter would be heard on 23.9.70 and that on that date the opposite party should also come ready with the documents which it wanted to file. The matter' was ultimately heard on 21-10-70, and an order was passed on 22-10-70. From a perusal of that order it appears that it was at that stage that the Magistrate realised that the opposite party could not be allowed to adduce any evidence in a proceeding under section 139 A of the Code, and, therefore, while he accepted the documents filed by the petitioners, he declined to consider the documents filed on behalf of the opposite party and fixed 23-10-70 for passing final orders in the inquiry under section 139 A of the Code and he passed the impugned order on that date. 9. Had the magistrate kept in view and not forgotten that the opposite party had no locus standi in the inquiry under section 139A of the Code, as he had realised on 22-10.70, he would not have fallen into the error of passing the impugned order on the basis of the statements made by the witnesses of the petitioners in their cross examination. Learned Counsel for the petitioners referred to a number of statements in the cross examination of the witnesses which had been utilised by the magistrate for coming to the conclusion that there was no reliable evidence in support of the denial. Learned Counsel for the petitioners referred to a number of statements in the cross examination of the witnesses which had been utilised by the magistrate for coming to the conclusion that there was no reliable evidence in support of the denial. I have verified this from the depositions of the witnesses and have found that the entire conclusion of the learned magistrate is influence by, the statements of the witnesses in their cross-examination. In the circumstances, it is quire apparent that the order of the learned magistrate is vitiated by this irregularity. 10. It further appears that the proceeding also suffers from vagueness in as much as the land in question, over which the public right is being claimed, has not been defined with any precision and without a precise description of the same it would not be possible to give I effect to the final order passed by the magistrate, in case the opposite party eventually succeeds. 11. In the circumstances, this application is allowed, the impugned order dated 23-10-70, is set aside and the case is remitted to the court below for a fresh decision in accordance with law in the light of the observations made above, after giving an opportunity to the opposite party to specify precisely the land over which the alleged public right is said to exist. In considering the matter afresh, the learned magistrate must ignore completely the statements made by the witnesses of the petitioners in their cross-examination. Application allowed.