Om Prakash vs Sarjug Prasad

Chaudhary Sia Saran Sinha, J.—This criminal revision by the petitioner, who was second party in the proceeding u/s 147 of the Code of Criminal Procedure, the opposite party being the first party in the said proceeding, arises out of an order of the Magistrate dated 27.10.1977 passed in that proceeding by which he ordered that the right of user of the rasta by Sarjug Prasad (Opposite party) should not be denied to him in any way by putting any sort of obstruction in it until ordered otherwise by a competent court of law.

There is a plot No. 1574 in Ward No. 18 of Katihar Municipality. It is a big plot and undisputedly it contains 12 ft. wide rasta in a portion of it. This plot belonged to one Hardyal it being his homestead (sic) raityati land. The petitioner Om Prakash purchased a portion of this plot from the heirs of Hardayal as also from the vendees of his heirs. Lastly some time after the year 197 3 Om Prakash also purchased the rasta itself.

Plot No. J573 is an adjoining plot No. 1574. A portion of this plot namely 15/3 was purchased by Sarjug Prasad and he raised construction on this land, a portion of which construction locates his Glass Factory Some other persons have also purchased a portion of plot No. 1573 and some of them have also raised construction thereon,

On 7.1.1976, Sarjug Prasad filed an application before the Sub-divisional Magistrate, Katihar, alleging the raising of obstruction by Om Prakash to his user of the rasta existing in plot No. 1574 which was alleged to be a public rasta. Obstruction to others as well in using that rasta at the instance of Om Prakash was alleged therein. On this petition of Sarjug Pd., a proceeding u/s 147 Cr. P.C. was initiated by the Sub-divisional Magistrate, Katihar on 13.7.1976 after getting an enquiry made into the matter by the Circle Officer.

Second party appeared in that proceeding and the parties led evidence.

The Sub-divisional Magistrate formulated two points for determination of this case, firstly whether there was any road, private or otherwise in plot No. 1574 and secondly if there was a road whether it was in the use of Sarjug Prasad and Ors. or not. On a consideration of the evidence adduced the Magistrate found that there was 12 ft. wide rasta in plot No. 1574 running from, what he described therein as hardyal Road, to the factory of Sarjug Prasad although it was in a sense a private road on the raiyati holding and not public rastaas alleged by Sarjug Prasad. The further finding of the Maeistrate was in the following terms "That Shri Sarjug Prasad was using it before Om Prakash purchased it and even after his purchase and hence his right of user is established." The petitioner has taken this matter in revision to this court against the impugned order of the Magistrate.

Two contentions were raised by the Learned Counsel for the petitioner The first was that no finding having been given by the Sub-divisional Magistrate about the exercise of the right of user within a period of three months as mentioned in the proviso to Sub-section (3) of Section 147, the impugned order was without jurisdiction and was liable to be set aside. The second conttention was that no finding having been given by the Magistrate about Sarjug Prasad using the rasta as of right, the order was fit to be set aside on this ground also. Both these two contentions were resisted by the Learned Counsel for the

8 The settled view of this court is that in a case whether the right claimed is exercisable at all times of the year an order u/s 147 of the Code will be without jurisdiction unless it is based upon a finding that the right claimed has been exercised within three months next before the institution of the enquiry. If any authority is needed for this proposition, the same may be found in the case of Akloo Mahato v. Jhari Mahato 1973 B.L.J.R. 437 and in the case of Gulam Farid Mian and Anr. v. Ahmad Bhathithara 1978 BBCJ 196 the former having been relied upon by the Learned Counsel for the petitioner and the latter by the Learned Counsel for the opposite parity. Learned Counsel for the opposite party relying on the cases of P.D. Hamir and Co. Vs. Suresh Chandra Sarkar, and and Bhagwati Pd. v. Lakshmi Narain Keshri 1960 B.L.J.R., submitted that the finding given by the Magistrate in the instant case was sufficient to include the finding of three months''user as required by the Proviso to Sub-section (3) of Section 47 and as such the order was perfectly in order. In the case of P.D. Hamir and Co v. Suresh Chandra Sarkar (supra), it was held, inter alia that no specific instance of user need be proved within three months and the continuous general user up to the date of obstruction would be sufficient. In the case, which related to the use of a road for the working up of a colliery, there was no specific instance of user proved within the statutory period of three months but there was a great deal of evidence of continuous general user un to the date when the respondents carts were stopped. In the case of Bhagwati Prasad v. Lakshmi Narain Keshri (supra) their Lordships held of the right referred torn Section 147 of the Code of Criminal Procedure is a legal right and not just a bona fide claim of right. If the Magistrate, finds, upon the evidence adduced before him that a party claiming the right has been cxerct sing it for long time not permissibly or otherwise but on assertion of the riaht of user the Magistrate may for the purpose of a proceeding under this section resume in the absence of anything to the contrary that the party has a legal right to the user. He cannot raise any such presumption merely on the basis of circumstances which suggest the existence of a right, there must be pos evidence show long user. There need not be any specific instance of exe of the light within three months next before the institution of the proceeding even general evidence of user within that period will be sufficient. The subject matter of this case was a well and general evidence of user within the statutory period laid down in the proviso of Sub-section (3) of Section 147 was held to be sufficient. The facts of these two cases are different from the facts of the present case.

The finding of the Magistrate in the instant case, as quoted above, is simply to the effect that Sarjug Prasad was using it before Om Prakash purchased it which purchase took place sometime in 1973 and even after his purchase and hence his right or user was established. What to speak of any finding about specific instance of user, there is also no finding of any continuous general user up to the relevant period nor the existence of any satisfactory evidence to that effect was pointed out in course of argument. Such a specific finding is all the more necessary in a case like the instant one when undisputedly there is another rasta, though smaller in width, leading up to the factory of the opposite party and when the claim of the opposite parity about the rasta in question being a public rasta stands negative. The finding recorded by the Magistrate, quoted above, cannot be said to include a finding of user within the statutory period, referred to above. Thus the first contention must succeed.

Coming to the second contention while Sub-section (1) of Section 147 speaks of the alleged right of user, whether claimed as an easement or otherwise, the proviso to Sub-section (3) of that section speaks about the exercise of such right. This would obviously necessitate an enquiry about the user being permissive or an assertion of a right or even a gesture thereof, though in appropriate cases, on positive evidence of long user, a Magistrate may presume that the user is as a matter of right. The finding of the Magistrate falls short of this requirement and thus even the second contention is not without merit.

A question arises whether the facts and the circumstances of the case justify a remand of the case for a fresh decision by the Magistrate keeping in view the requirements of law as discussed above considering the location of two plots namely 1574 and 1573, the action of the petitioner in purchasing the rasta as well and the rival contentions of the parties, the reply to this question shall be in the affirmative.

The result is that the criminal revision is allowed. The impugned order of the Magistrate is set aside and the case is sent back on remand to the Magistrate concerned for fresh decision on the basis of the materials already on the record in accordance with law keeping in view the observations made above.