JUDGMENT N.N. Sharma, J. - This revision is directed against order of Sri S.C. Jain, learned Sessions Judge Ballia dated 23-9-80 in Criminal Revision No. 93 of 80 by which he allowed the revision and set aside the order of learned SDM dated 3-7-1980 and remanded the case for proceeding afresh in accordance with Section 133 of Code of Criminal Procedure. 2. It appears that the dispute relates to a passage running towards south of the house of revisionist who is alleged to have obstructed the same to the prejudice of one Jagat Narain who moved Police to initiate these proceedings. Report of Station Officer Police Station Bansdih in this connection is dated 23-6-78 u/s 133 of Code of Criminal Procedure. According to that report the revisionist who is a man of status constructed southern wall of his enclosure by encroaching on a portion of the way towards south ; that way was being used by residents of locality to fetch water ; that way has been narrowed down by construction of the wall. Vishwanath Thakur is alleged to have threatened Jagat Narain with a gun also on 14-6-78 ; on receipt of Police report learned SDM concerned drew a preliminary order u/s 133 Code of Criminal Procedure. In response to the notice served on revisionist he put in appearance and denied the existence of a public way on the spot; he further maintained that the door of Jagat Narain applicant used to open towards east and not towards south ; he also denied the allegations of encroachment. 3. Learned Magistrate found on the evidence recorded by him that there was no public way on the spot which could have attracted the operation of Section 133 Code of Criminal Procedure. Jagat Narain carried the matter in Revision No. 93 of 80 when learned Sessions Judge found that the Magistrate has misread the evidence ; he recorded the impugned order after setting aside the order of learned Magistrate dated 3-7-80. 4. I have heard learned Counsel for parties and perused the record. 5. The contention put forward before me on behalf of revisionist was that there was no occasion on the part of learned Sessions Judge to have set aside the order of learned Magistrate dated 3-7-80 and to have superseded a direction for proceeding further u/s 133 Code of Criminal Procedure after remanding the case to him. 5. The contention put forward before me on behalf of revisionist was that there was no occasion on the part of learned Sessions Judge to have set aside the order of learned Magistrate dated 3-7-80 and to have superseded a direction for proceeding further u/s 133 Code of Criminal Procedure after remanding the case to him. In this connection reliance was placed upon Section 137 of Code of Criminal Procedure which reads as below: Section 137(1). Where an order is made u/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 them of the person against whom the order was made, question 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, before proceeding u/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 court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. He mainly based himself on Sub-clause (2) according to which the proper order in cases where opposite party adduced reliable evidence denying public right of way was to stay the proceedings till the existence of that right was decided by a competent court. His contention was that a criminal court had no jurisdiction to decide a civil right like the existence of a public way which lay within the exclusive forum of a civil court only. In this connection he relied upon Nand Kishore v. State of U. P. 1975 ACC 12 which reads as below: In the instant case the objector filed a written statement disputing the existence of public right and denying that any encroachment was made by him on the public way. There was no vagueness or ambiguity in the stand taken by him. In the absence of any material 10 indicate that prejudice was caused to him on account of failure of the Magistrate to question him when he appeared before him the order of the Magistrate could not be held to be vitiated. There was no vagueness or ambiguity in the stand taken by him. In the absence of any material 10 indicate that prejudice was caused to him on account of failure of the Magistrate to question him when he appeared before him the order of the Magistrate could not be held to be vitiated. The Magistrate however committed illegality when he permitted both the parties to lead oral and documentary evidence in support of their respective claims and based his decision on an evaluation of evidence of rival parties. In this view of the matter the order of learned Magistrate must be quashed... 6. It is correct that the aforesaid case related to the (sic) Code of Criminal Procedure. However the corresponding provision of Section 139-A of old Code was in pari materia with present Section 137 ((sic)) of Code of Criminal Procedure. It is also correct that although revisionist had taken a definite stand disputing the existence of a right of public way but his witness ManKeshwar made some damaging statement in his cross-examination also on this point; revisionist also filed extract of khasra of 1387 F. which does not mention the existence of a public passage on the disputed land ; under these circumstances it is obvious that Section 137(2) of the present Code came into play and the only course open to the Magistrate was to stay the proceedings until the matter of the existence of such a right had been decided by a competent court. Thus legal preposition is unassailable. 7. For the aforesaid reasons the revision is allowed, the impugned order is dissolved and the order of learned trial Magistrate is restored with the direction that he shall proceed in accordance with law as pointed out above.