ORDER
Imam, J.
1. This is an application in revision against the order of the learned Magistrate in a proceeding under Section 133 of the Criminal Procedure Code directing the petitioner, who is a Mokhtear, to remove his house from the Railway Pipe land by 30th November 1955.
2. The facts are that the proceeding was started against the petitioner on the application of the Divisional Superintendent of the Eastern Railway of Danapore. It is the case of the first party-opposite party that on 7th November, 1953, it was discovered that in plots Nos. 523 and 497 there had been encroachment of railway land. It is said that the Mokhtar, who is the petitioner in this application, had built his house on plot No. 523, and the other person, namely Ganesh Lal Saraugi had put up a wall on plot No. 497. Ganesh Lal Saraugi is not before me. The claim of the petitioner was that he built his house long time ago, and, therefore, the proceeding under Section 133 of the Code of Criminal Procedure had no application to the facts of the present case.
It transpires that some witnesses have deposed to the fact that the Mokhtar in question had encroached on the said plot by constructing a house as far back as 1947, that is to say the house was constructed in that year. The proceeding began in 1954. It is thus clear that the house had been in existence since near about seven years. The trial court was of the view that the petitioner has not acquired a prescriptive right over the land and hence, there was no title acquired by way of adverse possession. The trial court has taken a completely wrong view. There is no question of any adverse possession. All that has to be seen is whether there was long user after the encroachment is said to have taken place. There is a decision of this Court that where there is a long user, the jurisdiction of the Magistrate, to dismiss the case summarily under Section 133 of the Code of Criminal Procedure is ousted.
For this purpose, I would refer to the decision in Bhajoo Gope v. Haji S. Gholam Haidar, 21 Pat LT 1028 (A). It is true that that was a case which decided on the jurisdiction of the Magistrate at the stage when the Magistrate is to pass an order under Section 133 of the Code of Criminal Procedure.
3. There is, however, another decision of this Court in Ramkripal v. Supdt. Way and Works, E.I.R. Gaya, ILR 24 Pat 104: (AIR 1945 Pat 309 (B). This case, which I have just referred to, was consid red in that case with approval with certain amount of qualification. In ILR 24 Patna 104: (AIR 1945 Pat 309 (B), it was decided that where there is evidence on the record for the Magistrate to come to the finding that there was no long user, then the jurisdiction of the Court is not ousted. In the former Patna decision, it was assumed that where long user is established, then the claim of the opposite party at that stage, which is tantamount to denial of public right etc., has a bona fide colour and it is not open to the Magistrate to summarily take action against the opposite party. In my opinion, the proceeding under Section 133 of the Code of Criminal Procedure is not to be taken in a case where there has been a long user. It is not intend ed that the proceeding under Section 133 of the Criminal Procedure Code should be substituted for a civil suit in a Civil Court. In this connection, I would refer to a decision of the Allahabad High Court reported in Farzand Ali v. Hakirn Ali, ILR 37 All 26: (AIR 1914 All 491) (C) where it has been held:
“Now it is certainly expedient that in all proceedings initiated under Section 133 of the Code of Criminal Procedure the Magistrate should bear in mind that he is supposed to be acting purely in the interests of the public, and should be on his guard against tendency to use this section as substitute for litigation in the Civil Courts in order to the settlement of a private dispute”.
In the case I am hearing, it is more than obvious that the Mokhtar had built his house long time ago. Seven years cannot be said to be a short period. It is a considerably long period. It may not be long enough to acquire a title by way of adverse possession, but it is long enough to justify the conclusion that there was no immediate danger of public nuisance etc. It was submitted that the Railway Pipe line under the house of the Mokhtar may burst one day and the life of the Mokhtar is in danger. In my opinion, there is no substance in this submission as well, because if it has not burst so long, then there are no chances of doing so in the future. The proper course for the Railway authorities was to go to the Civil Court and get their rights adjudicated.
Section 133, Code of Criminal Procedure, cannot be used as a short cut to achieve what one would like to achieve in a Civil Court. The whole object of Section 133, Criminal Procedure Code, is that the public should not suffer and that such dangers or obstructions caused by the members of the public should be removed at the earliest possible moment. But, if there has been a nuisance from obstruction for seven long years and the public does not seem to have been inconvenienced by this nuisance, and all of a sudden after a lapse of so many years it is found that there has been an encroachment, then one can hardly hold that in these circumstances Section 133, Criminal Procedure Code, is applicable. The proper course, in these circumstances, is to go to the Civil Court and get the rights adjudicated there.
I am, therefore, satisfied that the order of the
Court below directing the Mokhtar, namely, the
petitioner to remove his house from over the plot
in question must be set aside. The application is,
accordingly, allowed.