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1977 DIGILAW 55 (KER)

AYISUMMA v. NABEESA UMMA

1977-02-28

S.K.KADER

body1977
Judgment :- 1. This revision petition is filed by the petitioner in "C.M.P. No. 12/74" on the file of the Sub Divisional Magistrate, Perintalmanna, challenging an order passed by the Court of Session, Manjeri in Crl, R. P. No 13/75 setting aside the order passed in C.M.P. No. 12/74. 2. A few facts necessary for the disposal of this petition may now be stated: The revision petitioner N. Ayisumma is residing in a portion of the property comprised in R. S.251/4 of Pallikkara amsom in Ponnani Taluk which was purchased by her husband in the year 1970. Portion of property in the same survey number belonged to the respondent and she is residing in the house thereon. There is a foot-path passing through the compound of the respondent running north to south along the eastern side of the house of the respondent. It is contended by the petitioner that this foot-path is used by her and the members of her family for reaching the Panchayat road proceeding from Kanhiyur to Perumukku and situated on the western side of the house of the petitioner. The respondent's husband purchased the property lying on the eastern side of this foot-path. The revision petitioner filed a petition before the Changaramkulam Police alleging that the respondent obstructed the foot-path and that excepting this pathway she had no other access to her house. pw. 3, the Head Constable of that Station, conducted enquiry and made a report to the Sub Inspector of of Police who submitted this report to the Sub Divisional Magistrate, Perintalmanna, with an endorsement thereon soliciting action under S.133 of the Code of Criminal Procedure, 1973. On the basis of this report the Sub Divisional Magistrate, Perintalmanna issued a conditional order under S.133(1) of the Code of Criminal Procedure against the respondent herein calling upon her to remove the obstruction to the pathway or to appear and show cause why the conditional order should not be made absolute. The respondent appeared before the Sub-Divisional Magistrate and denied the existence of any public pathway and the alleged obstruction. She examined one witness and produced Ex. D1 title deed relating to the property acquired by her husband. The learned Magistrate however holding that there was not liable evidence to support the denial, proceeded with an enquiry under S.138 (1) of the Code of Criminal Procedure. She examined one witness and produced Ex. D1 title deed relating to the property acquired by her husband. The learned Magistrate however holding that there was not liable evidence to support the denial, proceeded with an enquiry under S.138 (1) of the Code of Criminal Procedure. Three witnesses were examined on behalf of the petitioner, while two were examined on behalf of the respondent. The learned Magistrate thereafter parsed a final order making the conditional order absolute It was this order that was set aside by the learned Sessions Judge on the revision filed by the respondent holding that there was no material at all to find that there was a public pathway across the respondent's property or along its boundary which had been obstructed by the respondent as alleged. 3. The learned advocate appearing for the petitioner attacked this order mainly on the ground that in view of sub-section (3) of SAW of the Code of Criminal Procedure the respondent is not entitled to challenge that the pathway in question is not a public pathway. The counsel contended that the respondent has not chosen to challenge the order of the Sub-Divisional Magistrate that there was no reliable evidence in support of the denial of the existence of a public right, that this order has become final and that this decision, as far as the respondent is concerned, is conclusive and binding on her. ft was also contended that there is evidence to show that the pathway in question is a public one. 4. The very foundation of an order under S.133 of the Code of Criminal Procedure is the existence of a public nuisance. This section provides for a summary remedy for removal of certain particular and specific public nuisance, enumerated therein. Extra-ordinary powers are conferred on the concerned authorities under this section and they are meant only to be exercised under extra-ordinary circumstances. These powers should be exercised with all fairness and reasonable precautions. The section is not intended to settle private disputes. Remedy of this section can be sought only in cases where there is infringement of public right and not private right. 5. These powers should be exercised with all fairness and reasonable precautions. The section is not intended to settle private disputes. Remedy of this section can be sought only in cases where there is infringement of public right and not private right. 5. The contention of the counsel for the petitioner that by virtue of the prohibition in sub-section (3) of SAW of the Code of Criminal Procedure, the respondent is not entitled to question the final order on the ground that the pathway in question is not a public one has no substance. There are two stages in a proceeding under S.133 of the Code of Criminal Procedure. On receipt of a conditional order the party against whom the order is issued has a right to appear and deny the existence of a public right and adduce reliable evidence in support of the denial. Under sub-section (1) of S.137, when the party appears and denies the existence of any public right in respect of the way, river, channel or place, the Magistrate is bound to enquire into the matter, and if he finds in that enquiry that there is any reliable evidence in support of such denial, he is bound to stay the proceedings until the matter of the existence of such right has been decided by a competent court. This is the first stage of enquiry. On the other hand, if he finds that there is no such evidence, he has to enter the second stage and proceed with the enquiry as contemplated under S.138 (1). Under sub-section (1) of S.138, the Magistrate has to take evidence of the party at whose instance the conditional order was passed and the respondent, as in a summons case, before the final disposal of the case. A reading of SAW and 138 of the Code of Criminal Procedure makes it clear that the prohibition under sub-section (3) of SAW is only limited to the adducing of any evidence by the respondent in subsequent proceedings, namely, the enquiry under S.138 (1) of the Code of Criminal Procedure, in support of the denial of the existence of a public right. He would not in the subsequent proceedings be permitted to make denial of any such public right. He would not in the subsequent proceedings be permitted to make denial of any such public right. The penalties for the failure of the respondent to appear and deny the existence of a public right or to adduce reliable evidence in support of such denial, are provided for in sub-sections (2) and (3) of SAW of the Code of Criminal Procedure. A Magistrate cannot make a conditional order absolute on the ground that the opposite party failed to appear and deny the existence of a public right or he failed to substantiate his denial of such public right. There is nothing in these sections to indicate that the respondent who failed to appear in pursuance of a conditional order or failed to adduce reliable evidence in support of the denial is not entitled to question the final order. It may be noted in this respect that at the time when the Magistrate proceeded with the enquiry under sub-section (1) of SAW he had only the public report and the ex parte statement of the petitioner which cannot be treated as legal evidence against the opposite party before him to ascertain whether the pathway in question was a public one or not. If the party in whose favour the conditional order is passed fails to adduce necessary evidence, no further proceedings will be taken in the case and this is clear from sub-section (3) of S.138. The burden of proof in any enquiry under sub-section (1) of S.138 is on the complainant petitioner. This apart, the order of the Magistrate that the respondent failed to adduce relevant evidence in support of her denial is only an interlocutory order. There is an express bar under S.397(2) that the powers of revision conferred by S.397(2) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. There is therefore no force in the contention that the respondent is not entitled to challenge the final order on the ground that there is no public pathway or because she did not choose to file a revision challenging the interlocutory order The very approach made by the learned Magistrate to the enquiry under S.137(1) of the Code of Criminal Procedure was wrong. In such an enquiry the Magistrate was concerned only with the limited question of deciding whether there was reliable evidence in support of the denial of the existence of a public pathway and not whether there was reliable evidence to establish that there was no public pathway. 6. Now coming to the merits of the case I find that the learned Sessions Judge was right in holding that there was no material to hold that the pathway in question was a public one. Even the petition filed by the revision petitioner before the police does not anywhere state that the pathway in question is a public one. The Tahsildar who conducted local inspection of the property has made a report along with a plan. There is not even a whisper in this report that the pathway in dispute is a public one. The report of the Tahsildar shows that the petitioner and the members of her family are going to the Panchayat road through R. S.250/1 situated immediately to the west of their house. This property and the adjoining property comprised in R. S.251/4 belonged to the father of the petitioner and the property in R. S.250/1 is situated adjoining the Panchayat road. Ext.-D1 title deed does not show the existence of a public pathway across the property. The petitioner has not produced any title deed to show that any public pathway is running along the boundary of the property acquired by her husband. No village plan or sketch has been produced to show that there is a public pathway as alleged or that the area covered by the alleged pathway is poramboke or revenue land. There are no reliable materials on record in support of the case of the petitioner that the foot-path obstructed by the respondent is a public foot-path. This revision petition therefore fails and the same is hereby dismissed.