JUDGMENT 1. - These two revision petitions relate to the same subject-matter and as such it would be convenient to dispose them of together. 2. Siya Ram, Jiwan Ram and others (hereinafter referred to as the first party filed an application on September 1, 1979 under Section 133 of the Code of Criminal Procedure before the Assistant Collector and executive Magistrate, Nagaur, alleging that Uda Ram and Radha Kishan (hereinafter called "the Second party") have unlawfully obstructed the way which was used by the residents of village Seni in Tehsil Nagaur, since long for fetching water from the village Nadi (Tank). Learned Executive Magistrate, instead of proceedings in accordance with the procedure prescribed in Section 133 of the Code of Criminal Procedure, directed the Tehsildar Nagaur to make an inspection of the site to find out whether the so-called way was a public thoroughfare or not. He felt the necessity of making such an enquiry because the alleged way was not recorded in the revenue records. The Tehsildar inspected the site, as directed, on September 2, 1979, and made a report to the effect that the alleged way was a public thoroughfare. 3. During the pendency of the first application before the Executive Magistrate, the second party Radha Kishan appeared although no notice was issued to him under Section 133 of the Code of Criminal Procedure and denied the existence of any public way at the place alleged by the first party, After the denial of the right of way, the Executive-Magistrate proceeded to hear arguments as to whether the matter fell within his jurisdiction under Section 133 of the Code of Criminal Procedure. The Assistant Collector and Executive Magistrate then by his order dated November 28, 1979, held that the disputed way cannot be termed as public way and as such it did not fall within the preview of Section 133 of the Code of Criminal Procedure and rejected the application filed by the first party. 4. Some time later some members of the first party, including Jeewan Ram. filed another application on December 12, 1979, in the Court of the sub-Divisional Magistrate. Nagaur, complaining of the same obstruction of the alleged public way by Uda Ram and Radha Kishan. 4. Some time later some members of the first party, including Jeewan Ram. filed another application on December 12, 1979, in the Court of the sub-Divisional Magistrate. Nagaur, complaining of the same obstruction of the alleged public way by Uda Ram and Radha Kishan. It was again asserted that the alleged way was the only public thoroughfare for the residents of the village Sani for going and taking their cattle to the "Nadi" and was in use for times immemorial. On this application, the Sub-Divisional Magistrate passed a conditional order under Section 133 of the Code of Criminal Procedure on December 12, 1979, requiring Uda Ram and Radha Kishan to remove the obstruction complained by the first party and to show-cause, if they had any objection to the removal of such obstruction. The second party, namely, Uda Ram and Radha Kishan, appeared before the learned Sub-Divisional Magistrate, in response to the notice issued to them, in pursuance of the conditional order passed under Section 133 of the Code of Criminal Procedure and they showed cause against the removal of the alleged obstruction. According to the second party, there was no recorded way and the fields in which the way was alleged to exist, were Khatedari lands of Uda Ram and Radha Kishan and there was no public through fare. They also drew attention to the fact that an earlier application moved by the first party had been dismissed by the learned Executive Magistrate by his order dated November 28, 1979, and the matter could not be enquired into again. The second application is still pending before the Sub-Division at Magistrate. 5. In revision petition No. 69 of 1980, which has been filed against the order passed by the Executive Magistrate, dated 28 November, 1979, it has been urged by the learned counsel for the first party that the procedure prescribed in respect of proceedings under section 133 of the Code of Criminal Procedure was not followed by the learned Executive Magistrate and that the learned Magistrate should have considered the question as to whether the alleged way constituted a public through fare or not, after taking evidence of both the parties, in accordance with the procedure prescribed in Section 137 of the Code of Criminal Procedure. 6. 6. In revision petition No. 19 of 1980 which has been filed by the second party against the conditional order passed by the Sub-Divisional Magistrate, Nagaur on 12, December 1979, under Section 133 of the Code of Criminal Procedure and it has been urged by the learned counsel, appearing for the second party, that the second application was not maintainable in view of the fact that the learned Executive Magistrate has already held by his order dated 28 November, 1979, passed on the first application that there was no public through fare as such jurisdiction under Section 133 of the Code of Criminal Procedure could not be assumed. It was also submitted that the first party ought not to have filed another application under Section 133 of the Code of Criminal Procedure in another Court without disclosing the fact that the earlier application, filed in respect of the same subject-matter, was dismissed by the Executive Magistrate. 7. With regard to the proceeding which were initiated before the Executive Magistrate, it must be observed that the learned Executive Magistrate did not properly follow the procedure prescribed in Chapter X of the Code of Criminal Procedure, relating to the public nuisances. A direction for local investigation can be made by the Magistrate to such person as he may think fit, for the purposes of an enquiry under Section 137 or 138, only in accordance with the provisions of section 139 of the Code of Criminal Procedure. It is only after a conditional order for the removal of obstruction is passed under section 133 of the Code of Criminal Procedure and notice of such conditional order is served on the person against whom it is made, and if the alleged right of way is denied by such person, then the Magistrate has to make an enquiry in accordance with the procedure prescribed in Sections 137 and 138 of the Code of Criminal Procedure. At that stage, besides recording the evidence that may be produced by the parties, the Magistrate may, for the purposes of such an enquiry, appoint a person to make a local investigation of the site and give a report. 8. At that stage, besides recording the evidence that may be produced by the parties, the Magistrate may, for the purposes of such an enquiry, appoint a person to make a local investigation of the site and give a report. 8. In the present case, the Executive Magistrate on receiving an application under Section 133 of the Code of Criminal Procedure and before proceeding to pass a conditional order under Section 133, directed the Tehsildar by his order dated 1 September, 1979, to make a local investigation of the site on the question as to whether the disputed way was a public thoroughfare or not. Thus, the proper stage for appointing a Commissioner for making local investigation under Section 139 of the Code of Criminal Procedure had not been reached as a conditional order under Section 133 of the Code of Criminal Procedure had not passed. Moreover, when the second party, appeared on its own, filed its objections denying the existence of the right of public way, then the matter should have been enquired into in accordance with the procedure prescribed in Sections 137 and 138 of the Code of Criminal Procedure. But without recording the evidence of either party, the Magistrate proceeded to appoint a commissioner for local investigation and hear arguments and decided that there was no public thoroughfare. When the existence of a public thoroughfare was asserted by one party and was denied by the other party and both parties were present before the Magistrate, it would have been appropriate if the learned Magistrate would have proceeded in accordance with the procedure prescribed in Sections 137 and 138 of the Code of Criminal Procedure. If the second party would have led reliable evidence in support of the denial, then the Magistrate should have stayed the proceedings until the matter relating to the existence of a public right of way was decided by competent court. But in case the second party would have failed to produce reliable evidence in support of its denial, then the Magistrate would have proceeded to record the evidence as in a summons case. But in case the second party would have failed to produce reliable evidence in support of its denial, then the Magistrate would have proceeded to record the evidence as in a summons case. Even if the second party appeared, though without service of notice and denied the existence of the right of way, the Magistrate instead of proceeding under section 137 of the Code of Criminal Procedure, erroneously went on the consider the case under section 133 and without recording the evidence of either party went on to hold that there was no public thoroughfare and the dispute did not come within the preview section 133 of the Code of Criminal Procedure. 9. In my view, the procedure adopted by the learned Executive Magistrate was not in accordance with Law, merely because a light of way is not recorded in Revenue Records did not entitle him to appoint a Commissioner for local investigation without first proceeding to pass a conditional order under section 133 of the Code of Criminal procedure. Moreover after the second party appeared and field objections denying the alleged right of way, then it was incumbent upon him to proceed in accordance with section 137 of the Code of Criminal Procedure. It is not of much consequence that the second partly appeared after the receipt of notice issued under section 133 of the Code of Criminal Procedure and filed objections in response thereto or it suo-moto appeared and filed objections in respect of the proceedings under Section 133 of the Code of Criminal Procedure, denying the existence of the alleged right of way. After the denial was made by the second party, the procedure prescribed in Section 137 of the Code of Criminal Procedure ought to have been followed. It would have been more appropriate that after that stage was reached, the Magistrate should have proceeded to appoint a Commissioner for local investigation under Section 139 (a) of the Code of Criminal Procedure. As the proper procedure was not followed, I do not consider it necessary to express any opinion about the alleged existence of a public thoroughfare. The learned Magistrate should now proceed in accordance with Section 137 of the Code of Criminal Procedure and if he thinks necessary, thereafter, he may take recourse the procedure adopted under Section 138 of the Code. 10. The learned Magistrate should now proceed in accordance with Section 137 of the Code of Criminal Procedure and if he thinks necessary, thereafter, he may take recourse the procedure adopted under Section 138 of the Code. 10. In respect of the second application submitted by the first party before the Sub-Divisional Magistrate I think, it would be proper that the proceedings may be consolidated with those of the first application, as the order of the Executive Magistrate in the earlier proceedings is being set aside. 11. In the result, the revision application No. 69 of 1980 is allowed. The order passed by the Executive Magistrate, Nagaur, dated November 28, 1979, is set aside and the matter is sent back to the Sub-Divisional Magistrate Nagaur, for taking further proceedings in accordance with Section 137 of the Code of Criminal Procedure. 12. The revision application No. 19 of 1980, is dismissed. However, the Sub-Divisional Magistrate is directed to consolidate the proceedings in respect of the application of the first party dated December 12, 1979 with those of the earlier application dated September 1, 1979 and decide the matter in accordance with law and subject to the observations made above.Revision Allowed. *******