1. Plot No. 7783 of the survey is entered in the Record of Rights as gair mazrua in possession of the landlords; and in a subsequent partition it was allotted to Sitaram Ray and Baldeo Ray, two of the cosharers. These two men, whose house fell at the earthquake, have rebuilt the house in such a manner that it projects on to their plot No. 7783, to which their cosharers, who were parties to the partition proceedings, joining with some other men, have taken objection. They have prayed the Sub-divisional Magistrate of Samastipur to take proceedings under Section 133 of the Cr PC, for the removal of the obstruction; that is to say, that the opposite party may be compelled to pull down so much of their newly constructed house as falls within plot No. 7783. Their petition contained an untrue statement that the plot in question had been recorded in the survey as public waste land (gair-mazrua-am); and on receiving their petition the Sub-divisional Magistrate called upon the opposite party to remove the obstruction; or if they objected to the removal to appear before the Sub-Deputy Magistrate of Samastipur who exercised second class powers. When the opposite party appeared before the Sub-Deputy Magistrate they filed a written statement denying the title of the first party to this land, claiming that it was entirely their own, and supporting their claim of title by extracts from the Record of Rights and from the partition proceedings. This should have been enough for the disposal of the case under Section 139-A of the Cr PC, but the Magistrate instead of taking action under that section, proceeded to order that each party should produce his evidence, apparently under S. 137, the witnesses of the first party to be examined first.
2. In the course of the proceedings the Deputy Magistrate was transferred; but the hearing was continued by his successor, to whom a formal order of transfer was made by the Sub-divisional Magistrate. On being required by a Judge of this Court, when this Court was moved in revision, to state whether he was acting under S. 137 or S. 139-A, the Deputy Magistrate has replied that he is acting under S. 139, although it does not appear that any jury has been appointed: but it certainly does not appear from the form of the proceedings of the learned Magistrate that he was acting under S. 139-A. Indeed when the opposite party had produced evidence which prima facie would be sufficient to prove their claim, it was really unnecessary for the Magistrate to take any further evidence.
3. The defending party have in their favour the Record of Rights prepared under Ch 10, Ben. Ten. Act, and the record of a partition proceeding in which they and most of the petitioners of the opposite party were concerned and estopped. It would not be possible to hold that the petitioners have no reliable evidence in support of their denial of the existence of a public right in respect of this plot. Nothing would be gained by remanding the case in order that the Magistrate may go through the form of holding further enquiry. I accordingly direct that these proceedings will be quashed and the rule be made absolute.
4. Rule made absolute.
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