GOWDAPPA GOWDA Vs. TIPPANGOWDA

JUDGEMENT

(1.) The petitioners before this Court have challenged the correctness of the order passed by the Sub-Divisionaj Magistrate, Bagalkot Division, Under Section 139-A (2j of the Code of Criminal Procedure.

(2.) There is a dispute between the parties to tune petition regarding the right of way as shown in the has sketch enclosed to the petition as regards certain Survey Numbers and paths leading to different villages in the vicinity. The petitioners alleged that the respondents has put up obstructions' and had prevented them from using truer way. The learned Sub-Divisional Magistrate issued notice to the opponents to show cause. The opponents appeared and denied the existence of way.

(3.) Section 139-A (1) lays down that when a party against-whom an order has been made, appears before the Magistrate the latter shall question him as to whether he denies-the existence of any public right in respect of the way and then if he does so, the Magistrate shall enquire into the matter before proceeding Under Section 137 or Section 138. Sub-section (2) is relevant and it reads thus: If in such inquiry the Magistrate finds that there Is-any reliable evidence in support of such denial, he sheaf stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Cortex" In the present case, the Magistrate held an enquiry any came to the conclusion that there was reliable evidence in support of the denial of public right of way in Survey Nos. 29, 30 etc. and ordered that the proceedings Under Section 133 should be stayed until the matter of the existence of the public right of way was decided by a competent Civil Court.