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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice. 190a-
HENDRICK MENDIS v. SRI CHANDRASEKERAMUD ALIYAR.
P. G., Panadure, 28,009.
Obstruction to a road—Order Nisi—Claim of right—Reference to CivilCourt—Criminal Procedure Code, s. 105.
Where a person against whom proceedings are taken undersection 105 of the Criminal Procedure Code asserts a bona fideclaim to the property in respect of which the proceedings aretaken, it is the duty of the Magistrate to stay oriminal proceedings,and allow such person an opportunity of proving his title in aCivil Court.
PPEAL against an order of the Police Magistrate (T. W.
H.J.G. Pereira (with him E. W. Jayewardene), for the appellant.
Van Langeriberg, for the respondent.
Cur. adv. vuti.
December 9, 1908. Hutchinson C.J.—
This is an appeal against an order made on July 29 last makingabsolute an order nisi which had been made on June 9, for theremoval by the appellant of an obstruction to a road. The orderseems to have been intended to be made under section 105 of theCriminal Procedure Code, although no mention is made either in theorder nisi, or in the summons to the appellant of that section, or ofany allegation that the road is public, or of any other allegationwhich would give the Court jurisdiction. The appellant’s objectionsare that he made a reasonable claim in good faith that the road ishis private property, over which the public have no rights, andtherefore the Magistrate ought to have given him an opportunity ofproving that claim by a civil action ; and also that the road is onewhich is or may be lawfully used by the public. The proceedingsbegan with a petition from B. H. Mendis, which states that theappellant has blocked up the road leading to the petitioner’s house •and the petitioner on the same day gave evidence that the road isa public cart road. Upon that an order was made, dated June 9,directing the appellant to appear before the Court on the 18th toshow cause why the obstruction should not be removed.- On the18th the appellant appeared and said that the gate of which Mendiscomplained could be opened ; and the Magistrate directed a StationHouse Officer to inquire whether the gate was left open or not.cYon. XII.2
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1908. Then on July 25 and 29 the Magistrate took evidence, which wasDecember 9. chiefly directly to the question whether the road was a public roadHutchinson or not. He found that the road is a public road, and ordered theO.J. appellant to remove the obstruction within ten days.
I entirely agree with the observation of the Judges in GheUappav. Munkesar and others1 If the appellant’s claim was primd faciereasonable and made in good faith, the Court ought of its own motionto have allowed him time to bring an action, if he was willing to doso, to establish his claim- A Police Court is not a suitable tribunalto adjudicate a claim of this kind, which may involve questions oftitle to land of great value, and which generally raises questions ofgreat difficulty, both of fact and of law. Moreover, in the presentcase it does not seem to me that the evidence is very strong tosupport the finding that the road is a public way. The evidencerather points to the conclusion that, although there may be aprivate right of way for the owners or occupiers of certain housesand lands—which, however, was not claimed, nor would the claim,if proved, have given the Court jurisdiction to make this order—there is no public right of way. There is not much evidence of anydedication to the public, or of use to the public, or of any probabilitythat the public would ever want to use this road. I think this iseminently a case in which the appellant should have been given an.opportunity of bringing an action against the man who is assertinghis right to use the road; in that action the question can be triedwhether the defendant has a private right, or whether he has a rightas a member of the public, or whether he has any right at all.
I set aside the order under appeal, and direct that the proceedingson the application to have the order made absolute be adjourned fora month from the date of the receipt of this order in the Magistrate’sCourt, to enable the appellant to bring such action as he may beadvised. If he does not commence the action within that time andthereafter prosecute it diligently, the Magistrate can then proceedwith the application.
Appeal allowed ; case remitted.
‘ (1894) 3 S. O. K. 109.
HENDRICK MENDIS v. SRI CHANDRASEKERA