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Judgment
Narendra Nath Tiwari, J.—Heard.
The petitioner has prayed for quashing the order dated 7.12.2005 passed by learned Executive Magistrate, Chaibasa in M. Case No. 10 of 1988 and order dated 23.5.2007 passed by learned 2nd Additional District and Sessions Judge, Chaibasa in Cr. Revision No. 09/2006.
The said impugned order has been passed in the case arising out of a proceeding u/s 147 Cr.P.C. The said proceeding was initiated on the application of the petitioner. It was claimed that the residents of the locality along with the petitioner had been using portion of Plot No. 554 appertaining to Khata No. 92 of Chaibasa Municipality as approach to road, which is on Plot No. 549 and 553, for more than thirty years. A few years back southern portion of plot No. 554 was purchased by Hira Lal Tiu, Advocate. After purchasing the plot he erected wall over the land, leaving 2 ft. wide space for the use of residents of the locality. The residents of the locality were using the same as approach road. The northern portion of Plot No. 554 was purchased by one Dhananjay Tubid recently. He built his house over the plot leaving 2ft. wide space for the road. Thus, there is 4ft., wide space left for the use of the inhabitants of the locality to use as approach road. In the month of September, 1988, after rainy season, the petitioner and others went to clear the bushes and grasses grown on the road. The opposite party No. 2 remonstrated them saying that the land belonged to them and started abusing the petitioner. The petitioner and other residents have no other approach road and the said portion is being used by them for more than thirty years.
On that complain of putting impediment by the opposite parties a proceeding u/s 147 Cr.P.C. was initiated by parties. Report was called for from the Police Station. Parties appeared and filed their written statement. Enquiry was made and both the parties adduced evidences.
By order dated 27.7.1994 learned Executive Magistrate disposed of the proceeding and held that the opposite party No. 1 and 2 have encroached upon the land and directed them to remove the encroachment from Plot No. 554.
Against the said order the opposite party had filed revision. The revisional court after hearing the parties remitted the matter to the learned Magistrate with the direction, interalia, to afford opportunity to the opposite party to adduce evidence and to call for the report from the Circle Officer.
Learned Executive Magistrate, in compliance of the order, afforded opportunity to the first party to submit the detail of the passage along with the measurement of length and width. But he failed to furnish any such detail. After several dates ultimately the first party submitted the description of the passage and details of the encroachment on 3.5.2000 mentioning therein that the passage is 144 ft. long and 6ft. wide and that 2ft. of the northern side was encroached upon by the opposite party. Learned Magistrate also called for the report from the Circle Officer in detail. The Circle Officer had also inspected the spot and furnished the details after hearing both the sides. An objection was also raised on the report of the Circle Officer.
Learned Executive Magistrate considered the written statement filed by the parties and other facts and materials on record as also the report of the Circle Officer, Chaibasa and held that there is passage of 4ft. on Plot No. 554, which has been used as the way and access to the road by the petitioner and the other residents of the locality. Though the said land is raiyati land which was purchased by the opposite party, there is no objection by them for the use of the 4ft. passage. The petitioner had also claimed that the passage was 4 ft. wide. In view of the above it was held that the allegation of encroachment over 4 ft. wide passage is baseless and unfounded. Learned Magistrate by impugned order dated 7.12.2005 has dropped the proceeding.
Against the said order of learned Magistrate the petitioner filed revision before the District and Sessions Judge, Chaibasa. The (sic)
In the revision petition it was contended that learned Magistrate did not consider the direction given by the revisional court in earlier revision while remitting the case to him. It has been further contended that learned Executive Magistrate has not taken into consideration that in the said map submitted by the petitioner the width of the passage was shown as 6ft., whereas the Circle officer found only 4ft. wide passage. There was, thus, encroachment of 2 ft.
Learned revisional court heard the parties, considered the documents and the claim made by the petitioner and found that the order of learned Magistrate is clear and well discussed and properly based in the light of the order of the revisional court. He held that the allegation of not giving proper opportunity was baseless. He further found that in the written statement it was the clear stand of the petitioner that the width of the passage was 4ft. In spite of long pendency of the said proceeding the petitioner never filed any petition for amending the said claim by substituting claim of 6ft. or 8ft. The existence of 4ft. wide passage was well established. The opposite party never put any objection to the use of the same as approach road, dismissed the revision.
In the instant petition the petitioner has taken the same points before this Court over again. It has been submitted that the petitioner had submitted map showing passage of 144ft. long and 6ft. width and showing 2ft. encroachment by the opposite party, but learned Executive Magistrate failed to consider the same and erroneously held that the petitioner had claimed only 4 ft. wide passage. Revisional court also committed the same error and has erroneously dismissed the revision.
Mr. V. Shivnath, learned Senior Counsel appearing on behalf of the petitioner submitted that learned Magistrate as well as revisional court have committed error in not giving any finding on the petitioner''s claim of 6ft. wide passage. It has been found that there is existence of only 4ft. wide passage and as such the order of learned Magistrate that there is no encroachment as claimed by the petitioner is a result of non-application of mind and the same is not sustainable. The order of learned revisional court affirming the same suffers the same vice.
Though, the petitioner in the garb of petition u/s (sic) Court when have been discussed and properly considered by the revisional court and which is barred under the provisions of Section 397(3) Cr.P.C. I perused the petitioner''s written statement filed before learned Magistrate, when it was on the complaint of non-consideration of the same by the court''s below. I find that the following clear statement made in para-6 of the written statement:
...Thus, there is 4 feet wide space left for the use of the inhabitants of the locality to use as approach road.
Learned Magistrate had considered the said admission of the petitioner and held that there is no encroachment upon 4ft. wide passage claimed by the petitioner. Learned Magistrate, thus, dropped the proceeding which was pending for about 17 years. Learned revisional court also took notice of the said admission of the first party and considered the materials on record and dismissed the revision by the impugned order dated 23.5.2007.
The said concurrent findings of the said two courts are based on due consideration of the material on record. There is no infirmity or illegality in the impugned order. I find no ground made out to entertain this petition. It is, accordingly, dismissed.