Decided on March 15,1950

REX Respondents


Panigrahi, J. - (1.) This revision is directed against an order under Section 133, Criminal P.C., passed by the Magistrate, first class, Aska, direating the petitioner to remove an encroachment made by him on a village path in village Marudi Jagannathpur. The case against the petitioner was that he put up a stone foundation for a house across a public path in survey No. 6 of the said village of Marudi Jagannathpur, and encroached upon an area of 2 (sic) of an acre and thereby caused obstruction and annoyance to the public.
(2.) The short facts of the case are that the petitioner purchased a plot of homestead land on 26th June 1937 by a registered sale deed (Ex. 1) from one Ganesh Mohapatra (p. w 2) of the village. The site is described in the sale deed as 100 cubits long and 11 cubits wide, and is bounded on the east by the house of the petitioner and on the west by a "Rajamarga Khama." The Rajamarga Khama, as the very name implies, ig a public path which is used both as a pathway and as a channel for drawing off the rain water from the village.
(3.) The petitioner does not deny that there existed a public path to the west of the plot purchased by him but his case is that he has not encroached upon any portion of the public path n r has he caused any obstruction or annoyance to the public. There is, at present, a stone foundation running from north to south which, according to the prosecution, was put up by the petitioner in April 1948, and in June 1948 a Manajan petition was presented by villagers before the Tahsildar (p. w. 4) complaning against the petitioner. The petitioner was served with notices under the Land Encroachment Act and the Karanam also reported the alleged encroachment in his B-Memorandum. The Tahsildar made a local enquiry and was satisfied that the petitioner had made the alleged encroachment. He accordingly started proceedings against the petitioner simultaneously, both under the Land Encroachment Act and under the Criminal Procedure Code.;

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