Nasib Singh and another vs Amar Singh

G.S. Chahal, J.

Amar Singh and his brother have come up in this petition under Section 482 of the Code of Criminal Procedure for setting aside the order dated 25th February, 1992 passed by the SubDivisional Magistrate, Ambala and the order dated 13th March, 1993 passed by the Additional Sessions Judge, Ambala in proceedings under Section 133 of the Code of Criminal Procedure.

The proceedings under Section 133 of the Code of Criminal Procedure were initiated on the basis of an application moved by Nasib Singh and another, who claimed that an encroachment had been made by the present petitioners on the thoroughfare gair mumkinshaream which is part of Khasra No. 62 and was situated adjoining Khasra Nos. 8, 15/2 and 26, which Khasra Nos. were owned by the petitioners. The learned SubDivisional Magistrate, Amabala, passed conditional order on 24.8.1990 and called upon the petitioners to file their objections to the making of the aforesaid order absolute.

The petitioners have, in their reply, claimed that the passage was in existence and there was no encroachment and the villagers were using the same as usual. They had prayed for dismissing the application.

Both the parties were then called upon to lead evidence on 22nd July, 1991. Before the evidence could be recorded, the parties agreed that the Tehsildar, Ambala be deputed for the spot inspection and to make a report as to whether there was any encroachment. However, the Tehsildar having failed to make a report till 5th February, 1992, the SubDivisional Magistrate, Ambala inspected the spot himself and after visiting the spot, he got the measurement done from the Kanungo and on that basis, he found that there was an encroachment. He, as such, made the order dated 24th August, 1990 as final.

Learned counsel for the petitioners urges that the learned SubDivisional Magistrate, Ambala was not justified in not recording the evidence of the parties and that the inspection of spot may not be illegal but the same could not take the place of evidence. The contention of the learned counsel for the petitioner has force. The petitioners had clearly denied any encroachment upon the passage and claimed that the passage was running as usual. The petitioners had a right to show that the part on which encroachment was said to have been made, in fact, was not a part of the passage and the passage was located at a different point. They were, however, not given any opportunity and no evidence was recorded. In Keisam Kumar Singh and another v. State of Manipur, AIR 1985 Supreme Court 1664, their Lordships of the Supreme Court held that normally a court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. The SubDivisional Magistrate, no doubt, was justified in making the spot inspection, which could be for the purpose of appreciating the evidence that the parties may have brought on record. Section 138 of the Code of Criminal Procedure provides as to how the evidence is to be recorded here a conditional order under Section 133 of the Code of Criminal Procedure is made and the party who challenges that order, has appeared and shown cause against at order. There was, thus, no proper trial of the application brought by the respondents.

I hereby allow the petition and after setting aside the impugned orders, direct the SubDivisional Magistrate, Ambala to redecide the matter after giving the parties opportunity to lead their evidence and holding an enquiry under Sections 137 to 139 of the Code of Criminal Procedure. The parties are directed to appear before the Court on 22.11.1993.