IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No. 239/2008 Chatar Singh Panwar …….Revisionist Versus State of Uttaranchal ……Respondent Mr. Lokendra Dobhal, Advocate, for the revisionist. Mr. M.A. Khan, Brief Holder, for the State. Mr. R.S. Sammal, Advocate, for the private respondent. 12th August, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this criminal revision, filed by Chatar Singh Panwar, the judgment and order of Sessions Judge, Uttarkashi dated 23.10.2008 has been challenged. The said order was passed in Criminal Revision No. 11/2006 titled Dinesh Panwar v. Chatar Singh Panwar. In the said revision, the learned Sessions Judge while allowing the same, set aside the judgment and order of learned Sub Divisional Magistrate dated 7.4.2006 in the proceedings of Case No. 30/2003 titled as Chatar Singh Panwar v. Dinesh Panwar. 2. Having heard the learned Counsel for the either side, it appears that the revisionist Chatar Singh Panwar is real uncle of Dinesh Panwar. On the application of Chatar Singh Panwar, the proceedings under Section 147 CrPC were initiated against Dinesh Panwar and after rendering opportunity to both the parties, the learned Sub Divisional Magistrate was of the view that khasra no. 2208 & 2209, Dinesh Singh has encroached upon the way, which was being used by Chatar Singh and other persons. Although Chatar Singh Panwar ordinarily resides at some other place known as Gyansu, but his residence and other constructions are also existing alongside the disputed spot and he had kept on using 2 this way whenever he visited village Barahat, where the disputed land of the thoroughfare exists. 3. Learned Sub Divisional Magistrate has opined that in khasra no. 2208 & 2209, earlier there existed to be at least 8-10 feet wide thoroughfare, which has been encroached upon by respondent no. 2 Dinesh Panwar by constructing shops in the form of two tin shed. Before raising these tin shed and making the thoroughfare narrower, two wooden structures in the shape of shops were there and after removing these wooden structures, tin shed structures have been constructed. By these tin shed structures, this thoroughfare used by the revisionist Chatar Singh Panwar and other persons for approaching their ancestral house has been narrowed. 4. Learned Sub Divisional Magistrate has concluded his findings after giving an opportunity to both the parties for adducing their respective evidence and having procured the reports of Govt. machinery. Feeling aggrieved by the said order, Dinesh Panwar preferred a revision in the court of Sessions Judge, Uttarkashi, who set aside the judgment of the learned Sub Divisional Magistrate. 5. It has been contended by the learned Counsel for the revisionist that the learned Sessions Judge committed an error by substituting his own findings over and above the findings of the fact as recorded by the learned Sub Divisional Magistrate. Even the learned Sessions Judge in his judgment has accepted that the disputed pathway has been narrowed by Dinesh Panwar, but he has allowed the revision on the erroneous finding that still the said pathway is existing for being used by the pedestrians. The restricted thoroughfare has been continuously used by persons for coming and going, but 3 mules with loaded luggage cannot pass through that thoroughfare now. 6. Learned Counsel for the revisionist has relied upon a precedent of this High Court rendered in Criminal Revision No. 517/2001, Mahaveer Prasad v. State, wherein this Court has also reiterated the view, which is already established, that the lower revisional court has no jurisdiction to substitute its own view on a question of fact. 7. It has been contended on behalf of the learned Counsel for the respondent that revisionist Chatar Singh Panwar also filed a civil suit in the court of Civil Judge (Jr. Div.), Uttarkashi regarding the matter in controversy of the existing way, but that was dismissed and no relief was granted to him by the civil court. In this regard, the learned Counsel for the revisionist has apprised this Court that the Appeal No. 2/2009, Chatar Singh Panwar v. Dinesh Panwar is pending in the court of District Judge, Uttarkashi against the judgment and order dated 15.12.2009 passed by the Civil Judge (Jr. Div.) and thus the appeal is the continuation of the suit and the mater cannot be said to be put at rest by the civil court. Besides he has relied upon a precedent Sheo Nandan Singh v. Thakur Prasad Singh, wherein Patna High Court has expressed the view that merely on the ground that the matter in controversy is to be adjudicated by the civil court, the proceedings under Section 147 CrPC in the court of the Magistrate cannot be dropped. 8. It is also pertinent to mention that in such matters, it is not relevant as to whom the ownership of the land in question belongs to. In other words, whether the land, in question, is owned exclusively by one party or the other is not relevant. What is to be seen is whether the land, in question, 4 was being used until three months before the date of application to the Sub Divisional Magistrate and then after the obstacles were created by one party over the said land. In the instant case, learned Magistrate has also mentioned the fact of using this land in the shape of thoroughfare by the revisionist Chatar Singh Panwar until three months before moving the application to his court. 9. It is also pertinent to mention that along with supplementary affidavit, another report of Sub Inspector, Police Station Kotwali, Uttarkashi dated 25.4.2008 has been annexed and this report has also ratified the facts regarding raising the obstructions in the thoroughfare by Dinesh Panwar in the shape of tin shed shops. By these obstacles, he has narrowed the thoroughfare to the width of 2.5 feet. 10. In view of the above, this Court is also of the view that the Sessions Judge has committed an error by allowing the revision and substituting his own view after re- appreciating the evidence adduced in the trial court, wherefor he did not have any occasion. Besides, the Sessions Judge has accepted that by raising the constructions in the form of tin shed, the thoroughfare has been narrowed, even then he has set aside the judgment and order of the learned Sub Divisional Magistrate. This approach of the learned Sessions Judge is not proper. Therefore, the impugned judgment and order passed by the Sessions Judge is not sustainable and the same is liable to set aside. 11. In view of the above discussion, this criminal revision is allowed and the impugned judgment and order of the Sessions Judge dated 23.10.2008 is set aside and the judgment and order of the learned Sub Divisional Magistrate dated 7.4.2006 is restored. 5 5. Let the lower court record be sent back for compliance of the order. (Servesh Kumar Gupta, J.) 12.8.2011 Prabodh