Patna High Court
Thakur Sao And Ors. vs Abdul Aziz on 7 May, 1925
Equivalent citations: 91IND. CAS.41, AIR 1926 PATNA 170
JUDGMENT B.K. Mullick, J.
1. A dispute having arisen between the Hindus and Muhammadans residing within the Cantonment of Dinapur regarding the use of a ghat on the river Sone, the Sub-Divisional Magistrate of Dinapore on the 14th January last issued two orders which form the subject of the present applications before us.
2. One of these orders declares the "ghat" to be public and purports to have been made under Section 139-A, Cr.P.C. The Magistrate had issued a notice under Section 135 of the Code calling upon Deonarain Pande, the priest of the temples, to show cause why he should not remote certain enclosures and a signboard indicating that it was private property. The other order was made under Section 144 of the Code and prohibited six of the leading Hindus from restraining the Muhammadans from using the ghat.
3. It appears that the bank down the water of the river is the property of Government and that 40 or 50 years ago a Hindu resident of the locality obtained permission to erect two or three temples on the bank and to construct a flight of steps for the use of bathers.
4. The case of the Hindu is that they have acquired an exclusive right to use the steps and that the Muhammadans are not entitled to use the same as of right.
5. The learned Magistrate, proceeded to hold an inquiry under Section 139A of the Cr.P.C. as to Deonarain's claim that the ghat was private property and as to his denial that there existed any public right in respect thereof, he took the evidence of five Hindus and of a number of Muhammadans, and the conclusion to which he came was, that the Hindu witnesses though reliable were mistaken a imagining that there was no public right.
6. Now it is contended that the law does not give the Magistrate the power to find whether in fact the denial is true or false and as soon as a bona fide dispute has been made out, the Magistrate must hold his hand and refer the parties to the Civil Court.
7. The law, previous to the Code of 1923 as expanded in judicial decisions, was that as soon as the party cited appeared before him the Magistrate's first duty in a case under Section 133 of the Code was to determine whether any public right existed, if the party denied that there was any public right, the Magistrate had to determine whether that denial was bona fide or mere pretence. Only when he was satisfied that it was pretence could he proceed to make the order absolute If, however, he found that the denial was bona fide, his jurisdiction was ousted and he had no authority to enquire further.
8. Now Section 139 of the present Code appears merely to have confirmed this view of the law and given statutory expression to it. The section provides that 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 Civil Court; and, if he finds that there is no such evidence, he shall proceed, as laid down in Section 137 Orders 138, as the case may require.
9. The law, therefore, requires first of all that the party shall appear before the Magistrate and deny the existence of the public right in question. Secondly that he shall produce some reliable evidence, and thirdly that such evidence shall be legal evidence and shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction ceases to exist.
10. Now it is contended that the Magistrate is entitled to demand that the evidence shall be sufficient to satisfy him that no public right exists. The section, however, requires evidence and not proof and the only condition is that upon the materials before him the Magistrate has no reason to think the evidence false. The Magistrate has no jurisdiction to weigh the evidence and to determine on which side the balance leans.
11. Moreover there was evidence which, if believed, supported the claim made by the petitioners. It is not disputed that the witnesses are thoroughly honest in what they say; but the Magistrate says that they are mistaken in thinking that the ghat is not public. That is a matter for the Civil Court and, in my opinion, the Magistrate has no jurisdiction to inquire any further into the actual existence of the public right claimed by the Muhammadans.
12. In this view of the case the order of the learned Magistrate of the 14th January, 1925, will be set aside and he will be directed to stay all further proceedings in the case. The order under Section 144, Order P.C., has spent its force and no orders are required in respect of it.
Ross, J.
13. I agree. It seems to me that the intent of Section 139-A(2) is that the Magistrate should neither encroach oh the jurisdiction of the Civil Court which alone can determine the existence of such a public right as is referred to, nor fail to exercise his own jurisdiction. The criterion is that he should find evidence to support the denial which he can pronounce reliable. That is necessary and it is sufficient to oust his jurisdiction.