IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34736 of 2008 1. Nagina Singh, 2. Munilal Singh, 3. Ram Chandra Singh, 4. Awadh Lal Singh, 5. Chandrika Singh, all sons of Sheo Prasad Singh, 6. Sheo Prasad Singh, son of Late Parau Singh, all of village Turkauliya, Tola Manjhar, PS Turkauliya, District East Champaran – petitioners. Vs. 1. The State of Bihar, 2. Nand Kishore Prasad, son of Narsingh Sah, village Turkauliya, Tola Manjhar, PS Turkauliya, District East Champaran – opposite parties. … For the petitioners : Shri Sri Nandan Singh and Mr. Sanjay Kumar N0. 7, Advocates. For opposite party no. 2 : Mr. Pramod Kumar Pandey, Advocate. … 2 26.11.2009 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 26.5.2009 passed by the Addl. District & Sessions Judge, FTC I, Motihari in Criminal Revision No. 490/2006, arising out of Case No. 22M of 2003. This present case arises out of a 147 Cr.P.C. proceeding by which the court has asked the petitioners to remove the alleged encroachment and allowed the Ist party-opp. party right to use of way. The facts are that both the parties purchased 1 katha 10 dhurs of land each in the year 1942 and have been living peacefully since then. An application was filed on behalf of the Ist party claiming 25’ long and 10’ wide road. It has been alleged by the Ist party that the petitioners have built a wall and obstructed his right of way. Documents have been produced on behalf of the Ist party-opposite party relating to title of his land. The court has observed that the sale deeds of the petitioners or the opposite party do not speak of Rasta in 2 between the two block of lands. The court, on presumption that there must have been an agreement to use the land, passed the impugned order. It has also been brought on record by the Ist party that a Panchayati was held in which the Panches had ordered that the petitioners should give 1½’ of land as Rasta to opposite party. The opposite party was directed to pay a sum of Rs.1050/- for the said land. On going through the order, the facts that emerge are that the petitioners and the opposite party both had validly purchased the lands on which they have their houses/huts. It is also apparent that the boundary in the sale deed does not specify that the parties should have the right to use of way. It also cannot be denied that there was a dispute with respect to right of use of the land for a pathway. It is the case of the Ist party that there was dispute of right of use of way which resulted in the Panchayati which held that the petitioners should give to opposite party a path of 1½’ so that he may be able to egress and ingress from his house. Counsel for the petitioners, on the other hand, submits that there is a conflicting prayer by the Ist party regarding the use of the road/Rasta. The petitioners do not accept that a Panchayati was held as it is contended by them that in fact they have not signed on the document produced by the opposite party before the court below. The question, therefore, is whether the Ist party is entitled to the right of way and whether he was using the Rasta prior to the proceeding. Sub-section (3) of section 147 of the Cr.P.C. 3 envisages that where there is a dispute with respect to the land or water which is likely to cause breach of peace regarding alleged usage of water or land, then the Magistrate may in a proper case order for removal of obstruction in exercise of such right. The provisions of sub-section (3) further provides that the court has to come to a finding whether right has been exercised by the party so claiming three months prior to the passing of the order. The Magistrate should also call for a report from the police who after instituting an enquiry with respect to the right come to a conclusion regarding claim of right of use of land and water. In this case it is apparent that there is a dispute between the Ist party and the 2nd party, with respect to a path between the two plots of land. It is for the Court to first determine whether there was a path existing between the two plots of land and whether the Ist party was using part of the petitioners’ land as Rasta which should be determined by the Magistrate. In this respect I may observe that the claim of the Ist party for 10’ wide road appears to be exaggerated. If the court comes to a finding that the path was a pre-existing right of way, the Court may ask the Ist party to surrender part of his land for the path and it cannot be ordered by any court that only petitioners should give up part of their lands even if they are paid an amount by way of cost of the land. In any event the question of usage of land as Rasta is question of fact, and should be determined by the court before giving a finding of any sort and thereafter come to a finding whether the Ist 4 party was in fact utilizing the path. It would also be important to consider whether the Ist party in fact needs the path for the purpose of egress and ingress to his house. The land undisputedly belongs to the IInd party and the right and title of the owner should be protected. No one can claim use of a path on someone else land as a matter of right. I accordingly remand this matter back to the Subdivisional Officer, Sadar, Motihari who will examine the witnesses and get an enquiry made by responsible person in presence of the parties, apart from a police officer, so that the dispute may be settled once and for all. An order may be passed in this regard within a period of six months from the date of receipt / production of a copy of this order before him. In the mean time the house of the petitioners, if any, shall not be demolished. This application is, thus, disposed of. haque (Sheema Ali Khan, J.)