Madha Singh vs Sadha Singh & Anr.

M.M. Punchhi, J. (Oral)

The age of the encroachment is a relevant factor in proceedings under section 133 of the Code of Criminal Procedure. The petitioner herein, who was the respondent in the proceedings, had examined four witnesses to prove that the alleged obstruction was over 10 years old. It was sought to be suggested on his behalf that proceedings under section 133, of the Code of Criminal Procedure, were hardly the remedy for such an old obstruction. The learned Sub Divisional Magistrate, Gurdaspur, partially noticed the evidence but recorded the finding that it had not been conclusively shown to her by any dependable evidence that the construction was indeed that old. In revision, the learned Additional Sessions Judge, Gurdaspur, took note of the evidence of only two witnesses and not of all and jumped to the conclusion that there was no cogent evidence that the construction was made 15 years back and that too at that time and not thereafter.

After hearing learned counsel for the parties, I am of the view that in the absence of a positive finding by the final court in that regard, it would be difficult to come to a conclusion whether in the instant case proceedings under section 133 of the Code of Criminal Procedure was the rightful course. Accordingly on this short ground this petition is allowed and the order of the Additional Sessions Judge, Gurdaspur, is set aside, remitting the matter back to him with the direction that he should record a positive finding and then view it in the light of the precedents cited before him which have a bearing on the time factor.

The parties through their counsel are directed to appear before the learned Additional Sessions Judge, Gurdaspur, on February 17, 1986.

Case remanded.