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1995 DIGILAW 269 (ORI)

BHRAMARBAR ROUT v. NETRANANDA PANDA

1995-07-20

R.K.PATRA

body1995
R. K. PATRA, J. ( 1 ) HEARD Shri Patry, learned counsel for the petitioners and Shri Mishra, learned counsel for the opposite party. With the consent of the learned counsel for the parties, the matter was heard. ( 2 ) PETITIONERS were members of second party in a proceeding under section 145 of the Code of Criminal Procedure in the court of the Executive Magistrate, Cuttack in Criminal Misc. Case No. 6 of 1983. The opposite party was the first party in the said proceeding. By order dated 4-4-1992 the learned Magistrate declared the possession of the petitioners over the disputed land. The said order came to be challenged by the opposite party in the Court of the Sessions Judge, Cuttack in Criminal Revision No. 68 of 1992. The learned Sessions Judge by order dated 15-2-1993 set aside the order of the learned Magistrate and declared that the opposite party was in possession of the disputed land on tile date of initiation of the proceeding. Being felt aggrieved by the said order, the petitioners as already indicated, has filed this revision. ( 3 ) THIS case has a chequered history. By order dated 15-10-1984 passed by the learned Magistrate the possession of the opposite party over the disputed land was first declared. The said order was challenged by the petitioners in Criminal Revision No. 138 of 1984 before the Sessions Judge who after hearing remanded the matter to the Executive Magistrate for fresh disposal. By order dated 16-8-1989 the learned Magistrate declared possession of the opposite party which was challenged by the petitioners in Criminal Revision No. 172 of 1989 in the Court of the Sessions Judge. By order dated 5-5-1990 the learned Sessions Judge again remitted the matter to the Executive Magistrate. Thereafter, by order dated 4-4-1992 the learned Magistrate declared the possession of the petitioners which has been reversed by the learned Sessions Judge by the impugned order dated 15-2-1993. It would be evident from the aforesaid that the parties are still fighting out in criminal court without approaching the competent court for adjudication of their right over the disputed land. ( 4 ) THE land in dispute is located in village Paramhansa which comprises chaka plot No. 1414 (area) Ac. 0. 06) and chaka plot No. 1415 (area Ac. 0. 05) corresponding to settlement plot No. 2481 (Ac. 0. 06) and 2482 (Ac. 0. 05 ). ( 4 ) THE land in dispute is located in village Paramhansa which comprises chaka plot No. 1414 (area) Ac. 0. 06) and chaka plot No. 1415 (area Ac. 0. 05) corresponding to settlement plot No. 2481 (Ac. 0. 06) and 2482 (Ac. 0. 05 ). Admittedly, the disputed land is the property of Sri Paramhansa Nath Dev of village Paramhansa. The opposite party claims that he is in possession of Ac. 0. 01 decimal of land in plot No. 2393 and Ac. 0. 05 decimals in plot No. 2394 on the basis of a registered deed of gift executed by Ranga Bewa widow of Banchhanidhi Roul and the balance portion of the disputed land was acquired from the deity through its trustee and since then he has been in peaceful possession of the disputed land. According to him, in the current settlement, his name has been- recorded as tenant and the Commissioner of Endowments has also recognised his title and possession as per order dated 22-11-1972. The case of the petitioners is that one Basudev Roul, Dasarathi Roul and Ranga Bewa were members of one family descending from their common ancestor Batasi Roul. The disputed land stood recorded in the R. 0. R. of current settlement in the name of Basudev Roul, Dasarathi Roul and Ranga Bewa as their nizdakhaf land. After the death of Basudev Roul and Ranga Bewa, the disputed land was inherited by Dasarathi Roul who became the sole owner and the petitioners are his descendants. ( 5 ) SHRI Patry for the petitioners contended that the order of the learned Sessions Judge is vitiated in law due to non-consideration of the documents filed on their behalf. He also submitted that the learned Sessions Judge has exceeded his jurisdiction in exercise of the revisional power in reappreciating the evidence and declaring the possession of the opposite party. In this connection, he placed reliance on a Bench decision of this Court in Arjuna Panda v. Bhaskar Chandra Sahu. Shri Mishra, on the other hand submitted that the learned Sessions Judge considered the documents filed on behalf of the petitioners and as none of them supported the possession of the petitioners, he on the basis of documents and other evidence of the opposite party declared the latters possession. Shri Mishra, on the other hand submitted that the learned Sessions Judge considered the documents filed on behalf of the petitioners and as none of them supported the possession of the petitioners, he on the basis of documents and other evidence of the opposite party declared the latters possession. ( 6 ) IT appears that the petitioners had filed the following documents in support of their possession besides the oral evidence adduced in the case. Documents are: (i) Khatian (ii) Certified copy of the plaint of the T. S. No. 7 of 1973 filed by the opposite party. (iii) Certified copy of the order dated 9-7-1975 passed in T. S. No. 7 of 1973 permitting the opp. party to withdraw the suit. (iv) Decisions of the Commissioner, Land Records and Settlement. (v) Order of the Addi. Tahasildar dated 31-7-1976. (vi) Certified copy of the petition filed under section 19 of the Orissa Hindu Religious Endowment Act. From the discussion made by the learned Sessions Judge it cannot be held that he has considered the aforesaid documents. Even if he considered those documents, no specific reason has been ascribed as to why he rejected them. The rejection of documents without ascribing any reason has vitiated the final order passed by the learned Sessions Judge which cannot be supported in law and the same has to be set aside. ( 7 ) IN the result, the order dated 4-4-1992 passed by the Executive Magistrate, Cuttack in Criminal Misc. Case No. 6 of 1983 and the impugned order dated 15-2-1993 passed by the learned Sessions Judge are set aside. The matter is remitted to the Court of the Executive Magistrate, Cuttack. He is directed to consider the evidence both oral and documentary adduced on behalf of the parties and dispose of the matter in accordance with law as expeditiously as possible keeping in view particularly the fact that the case relates to the year 1983. The lower court records may be sent back forthwith. Revision allowed. Matter remitted to court of Executive Alagistrate. He is directed to consider evidence both oral and documentary adduced on behalf of parties. .