ORDER Kailash Prasad, J.
1. This is a reference by the Sessions Judge Bulandshahr, recommending that the order of the Magistrate staying the proceedings should be set aside and the Magistrate be directed to find if the public way determined by the consolidation authorities has been obstructed by Bhule and others.
2. Proceedings under Section 133, Cri. P. C. started on the application of Jai Ram Singh alleging that Bhule and others (opposite parties) had obstructed a public way passing through plot No. 373 in village Suthari. The application was sent by the Magistrate to the Station Officer, Bisa-rakh, for report. The Station Officer reported that Bhule and others had illegally closed the public way by constructing a wall. Thereupon the Magistrate passed a conditional order requiring Bhule and others to remove the obstruction. Bhule and others filed a written statement denying the existence of any public way on the land on which they were constructing wall. They examined three witnesses in support of their denial of the existence of the public way. The file was then sent to the Tahsildar for enquiry under Section 139A, Cri P. C. with the direction that the Tahsildar should enquire and make a report in consultation with the Consolidation Officer. The Tahsildar reported that no evidence was produced by Bhule and others except what they had produced before the Magistrate who sent the case to the Tahsildar for enquiry and report. The Tahsildar also reported that he inspected the locality and a public way was in fact obstructed by Bhule and others.
It appears that the Magistrate who had sent the file to the Tahsildar for enquiry and report was transferred in the meantime and another officer succeeded him. He then proceeded to enquire under Section 139-A if there was any reliable evidence on behalf of Bhule and others in support ot their denial of the existence of a public right of way. After hearing the parties the Magistrate found that the proceedings before the Tahsildar were illegal. The Magistrate then considered the evidence on record and was of the view that the evidence produced by Bhule and others in support of the denial of the public way was reliable. He, therefore, ordered the proceedings to be stayed until the question of the existence of the public right of way was decided by a competent court.
3. Jai Ram Singh who had initiated the proceedings under Section 133, Cri. P. C. went in revision before the Sessions Judge against the order of the Magistrate. The learned Sessions Judge, on considering the documentary evidence produced on behalf of Jai Ram Singh, came to the conclusion that an area of 2 biswas in plot No. 373 was a public way. He also held that when the documentary evidence in the form of a map prepared by the consolidation authorities established the existence of a public way the Magistrate should have proceeded to determine if any encroachment was made on that public way or not. The Sessions Judge has therefore made this reference making the recommendation mentioned in the opening part of the order.
4. Mr. G. N. Verma, appearing for Jai Ram Singh contended that when the case was sent to the Tahsildar for enquiry and report under Section 139A, Cri. P. C. and the Tahsildar reported that there was no evidence in support of the denial of the right of public way the Magistrate had no jurisdiction to determine whether there was any reliable evidence in support of that denial. He argued that the report of the Tahsildar that Bhule and others did not produce any evidence before him amounted to a conclusive finding to the effect that there was no reliable evidence in support of their denial of the public way. The contention does not appear to be sound. It is true that under Section 133 a Magistrate before whom proceedings have been initiated under Section 133, Cri. P. C. and who has made a conditional order can direct the parties to appear before some other magistrate of the first or second class but he cannot direct the parties to appear before Magistrate for the limited purpose of enquiry under Section 139A. If he, after making a conditional order, chooses to send the case to another Magistrate, the other Magistrate gets seized of the case until he disposes it of finally either by setting aside the conditional order or by modifying it in the manner provided in the sections following Section 133, Cri. P. C. The transfer of the enquiry to another Magistrate under Section 133, Cri. P. C. does not contemplate transfer for a limited purpose of Section 139-A only. This is obvious from the wordings of Section 133 itself. That section says that the Magistrate who makes a conditional order may require the parties "to appear before himself or some other Magistrate of, the first or second class at a time and place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided."
The reference of this case to the Tahsildar for the limited purpose of Section 139-A was illegal and therefore ineffective. It was a nullity and the Magistrate in whose court the proceedings were initiated, could ignore it.
5. The next point to be considered is if the evidence adduced before the Magistrate by Bhule and others in support of the denial of public right of way is reliable or not. Reliable evidence is the evidence of reliable persons and all that a magistrate has to satisfy is that the evidence produced is not false. What is meant by the section is not that the magistrate should weigh the evidence pro-duced by both the parties and then come to the conclusion which is more reliable or should be preferred. It is significant to note that Section 139A says 'reliable evidence' and not 'proved'. In the instant case Bhule and others examined three witnesses. The papers prepared by the consolidation authorities also show that 19 biswas of plot No. 373 belongs to Bhule and others. No doubt the papers prepared by consolidation authorities show that two biswas of land of plot No. 373 is a public pathway. That pathway, however, does not appear to be marked on the spot. The essence of the controversy raised by Bhule and others is that the piece of land on which they have built a wall is not a public pathway. Even if there is a public pathway in plot No. 373 it does not mean that the denial by Bhule and others is false and frivolous. If the denial is qua the piece of land alleged to be encroached upon it is enough to attract the application of the section.
As 19 Biswas in plot No. 373 belongs to Bhule and others, the real question for determination which arises from their denial of the existence of a public pathway is whether the wall in question has been built on that portion of land which belongs to them. This dispute is of a civil nature and can properly be decided by a civil court. Since the alleged public pathway is not clearly demarcated on the spot and a major portion of plot No. 373 belongs to Bhule and others, it cannot be said that by denying the existence of public pathway on the piece of land on which the wall has been constructed, the claim of Bhule and others is a mere pretext to oust the jurisdiction of the magistrate. The learned Sessions Judge assessed the respective weight of the evidence of both the parties. This is not what is intended under Section 139A. The claim of Bhule and others appears to be bona fide and there is nothing to show that the testimony of the witnesses produced by them is false on the face of it The object of Section 139A is that if the denial of the public pathway involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent civil court and not by a magistrate in a summary inquiry provided under Section 139A. The Magistrate was, therefore, right hi staying the proceedings until the matter of existence of public right quo the piece of land alleged to have been encroached upon has been decided by a competent civil court.
6. The reference is rejected and the order of the Magistrate is affirmed.