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1992 DIGILAW 21 (ORI)

TARESWAR NAIK v. SATYABADI LENKA

1992-01-21

K.C.JAGADEB ROY

body1992
JUDGMENT : K.C. Jagadeb Roy, J. - The present petitioners are the First Party members in a 144 proceeding initiated by them in the Court of the Executive Magistrate, Bhanjanagar numbered as Misc. Case No. 390/84 and by order dated 30-10-1984 the Court prohibited both the parties to come over the disputed land. The land in dispute consists of a portion of the Survey No. 69(1) measuring Ac. 0.60 cents out of a total area of Ac 2.04 cents. As is revealed from the order of the Executive Magistrate, the claim of the First Party was that the land originally belonged to the Kotha of village Netanga consisting of one Agadhu Khandual and other 21 persons and in the year 1929 the Kothadars orally gifted the land to the village deity Sri Sri Gopinath Swamy. Since then the disputed land is under peaceful possession of the deity Sri Gopinatth Swamy and is shown in the property register of the deity. The First Party No. 1 being the Managing Trustee of the deity had leased out the land in public auction along with other landed properties of the deity and the First Party No. 2 Hari Lenka being highest bidder took the disputed land on lease for two years and was cultivating the same and raised 'Jagannath' variety of paddy in the years of dispute. Since the second party members created disturbance and threatened to cut away the paddy raised by First Party No. 2, the land was attached u/s 145 Cr.P.C. in the year 1984 and thereafter the disputed land was being leased out on public auction by the Revenue Inspector of Netang who was appointed the receiver after attachment of the land. The case of the second party members was that the First Party members had no title to the land and they were never in possession of the same. The land was throughout in possession of the second party members being the members of Kotha. 2. Evidence was led by both the parties before the Executive Magistrate and the First Party examined four witnesses whereas the Second Party examined five witnesses in support of their possession over the case land. The First Party had also filed several documents in support of his possession over the land in question. 3. 2. Evidence was led by both the parties before the Executive Magistrate and the First Party examined four witnesses whereas the Second Party examined five witnesses in support of their possession over the case land. The First Party had also filed several documents in support of his possession over the land in question. 3. The learned Magistrate, however, after consideration of all the materials on record has come to a finding of possession of the First Party and held that "the First Party was in actual possession of the disputed land on the date of issue of the preliminary order and even two months prior to that". A proceeding u/s 144 Cr.P.C. was initiated on 30-10-1984 in respect of j:he disputed land which was later on converted to one u/s 145 Cr.P.C. The preliminary order in 145 proceeding was passed on 14-12-1984. It is the admitted fact that by order dated 30-10-1984 in the Section 144 Cr.P.C. proceeding, both parties were prohibited to comeover the disputed land. The.Second Party members who lost in the Court of the Executive Magistrate. Bhanjanagar preferred a revision before the 1st Additional Sessions Judge, Berhampur, who by its order dated 16-8-1988 in Criminal Revision No. 45/88-had set aside the order dated 31-3-1986 of the Executive Magistrate, Bhanjanagar in Misc. Case No. 390/84 and remitted back the matter for final disposal to the Court of the Executive Magistrate. It was ordered in the said revision by the 1st Additional Sessions Judge that the lower Court is to hear the parties afresh on the available materials on record keeping in view that the crux date of declaration of possession of either party to this proceeding is 30-10-1984. 4. In the present revision by the 1st Party, it is urged that since the Executive Magistrate,had held that the 1st Party was in actual physical possession on the date of the preliminary order, and even two months prior to that the First Party's possession is declared, with effect from 14 10-1984 and as such the First Party is declared to be in actual physical possession of the land on 30-10.-1984. Therefore, it would serve no purpose if the case is remitted back to the Executive Magistrate for fresh determination as to whether any party was, in possession of the land on 30-10-1984. The contention raised by the petitioner of this revision is not without any substance. 5. Therefore, it would serve no purpose if the case is remitted back to the Executive Magistrate for fresh determination as to whether any party was, in possession of the land on 30-10-1984. The contention raised by the petitioner of this revision is not without any substance. 5. Law is well settled and it has already been held by a Division Bench of this Court in Padma Charan Behera and Ors. v. Prafuila Chandra Naik and Ors. reported in Vol. XLI (1975) CLT 1001 as follows : "that where the proceeding u/s 144, Criminal Procedure Code, is the forerunner of the subsequent proceeding u/s 145 the date of the order for the purpose of the proviso should be taken to be the date on which the proceeding u/s 144 was started." In the conclusion of that case, the Court further held thus : "Where a Magistrate initiates a proceeding u/s 144, Criminal Procedure Code in respect of immovable property while he ought to have initiated a proceeding u/s 145 the party would not be allowed to suffer and the date of initiation of the proceeding u/s 144, Criminal Procedure Code shall to treated as the date of the preliminary order u/s 145 (1)" The 1st Additional Sessions Judge, Ganjam as the revisional Court in the Revision Case at the first instance of the Second Party in Criminal Revision No. 45/88 has indicated the correct, date with reference to which the possession was to be found. The only question that now aristes is as to whether there was necessity of remand in view of the finding of the Executive Magistrate in Misc. Case No. 390/84. law is well settled that in coming to finding of possession u/s 145 Cr.P.C. the Court cannot act perfunctorily and shall consider each piece of evidence that is led in the case before coming to his finding on possession: In the present case. Case No. 390/84. law is well settled that in coming to finding of possession u/s 145 Cr.P.C. the Court cannot act perfunctorily and shall consider each piece of evidence that is led in the case before coming to his finding on possession: In the present case. evidence is laid that Hari Lanka, the petitioner No. 2 of this revision is in cultivating possession of the disputed land whereas there is also evidence that Hari Lenka was merely a tenant but during the relevant time the Sand actually belonged to the deity-petitioner No. 1, One of the 1st Party witnesses "however said that he had not seen if the Sand belonged to Kotha, The Magistrate without discussing these statements of Witnesses declared the possession of the 1st Party without even signifying if it was the First Party No. 1 or First Party Mo.2 or both were in possession at the material, date. It was required by the Magistrate to be specific about the party who was in actual possession on the date of the preliminary order which for the purpose of this case is 30-10-1984. The order of the 1st Additional Sessions Judge, Ganjam has directed the Magistrate to declare the possession of the party on the date of preliminary order, namely 30-10-1984 on basis of the materials on record. I do not find any infirmity in the said order. This revision has therefore no merit and is accordingly dismissed. Final Result : Dismissed