Muhamad Musa vs Shyam Sundar Koeri and Others

John Bucknill, J.—This is an application for revision in connection with proceedings which were taken u/s 147 of the Criminal Procedure Code before the Deputy Magistrate of Chapra in January of this year. The affair related to a dispute in connection with the right of passage by the first party over a piece of land lying to the north of his house and to the east of the house of the second party. Now the Deputy Magistrate name to the conclusion that the first party was entitled to a limited right of passage over the land in question. He decided that this right was not such as included the right to take over the land any vehicular traffic.

The learned Vakil for the applicant has put very clear and well all the contentions which can possibly be urged against the action which the Magistrate took, In the first place, he points out that the Magistrate himself visited the locality and it is suggested that the Magistrate''s decision was very much affected by what he actually saw and it is said that if the Magistrate''s decision is based substantially upon the impressions which he himself obtained as the result of his view of the land, his decision should be set aside and the matter referred back for investigation by another judicial officer. But I do not think, on an examination of the Magistrate''s decision, this contention is here very well founded. It is true that the Magistrate did visit the place, but in his decision he says that he was satisfied from the evidence that it was not clear that Vehicular traffic was in the habit of passing over this parti land. He does also add that he comes to his conclusion also as well from the inspection which he made of the locality, but it will be at once observed that these two facts are not conjunctive but disjunctive, that is to say, that he was satisfied from the evidence standing by itself that his view was correct that the right of way was limited in the manner in which I have indicated.

It is suggested here then that the evidence, if looked at, would show that the Magistrate was not correct in thinking that it disclosed any such feature; but I do not think that in this revision matter it is possible for me to examine the evidence. The Magistrate has come to this finding of fast, and on the evidence I do not see that I can go into the evidence itself, unless there is some very strong reason (which I do not see present here) for so doing.

The second point is that it was not competent for the Magistrate to pass an order which had the effect of giving to the first party a right if way which was limited by the exclusion of vehicular traffic. I am afraid I do not quite appreciate the force of this argument. It is true that right of way was the subject-matter of the dispute, but it is also true that a right of way may be naturally of many different kinds. One can well imagine rights of way which are confined to pedestrain traffic or one from which (and I know of one myself) the traffic of camels was excluded. So too again within my own knowledge I have known rights of way where wheeled traffic was entirely forbidden.

It is suggested that as the dispute as drawn up in the proceedings was stated to refer generally to the question of right of way without qualification, that there might possibly have been some hardship or surprise experienced by the first party, who did not know possibly that his attention would be required to be directed to be proving anything more than what he thought perhaps would be the features of a right of way when spoken of in a general fashion. I do not think, however, that this contention can really be supported, it seems to me to be natural and only common sense that the person, who is claiming a right of way, would put his best case in the forefront, and if he could prove that he had a right to pass vehicles over the land for which he claimed this right of way, he would naturally bring evidence in support of the larger claim which would, of course, include normally the smaller.

Lastly, it has been suggested that the Magistrate has made use of expressions which amount in effect to a finding that the second party is in possession of the land in question. It is difficult to see how under proceedings under this Section 147 some such conclusion can well be avoided, when the question which has to be decided is as to whether one party has the right of passage over land which primarily is supposed to belong to another party. It may be that it is unnecessary definitely to find under the provisions of this section which party is in possession, but I do not think that such a finding, or a statement which amounts to a finding that a particular party is in possession, affects materially proceedings which are ostensibly taken u/s 147.

I think, therefore, under the circumstances disclosed here, there is no ground for my interference with the Magistrate''s decision and the application must be rejected.