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2000 DIGILAW 50 (ORI)

SITANATH MOHANTY v. SASHI ALIAS DUNGEI BEWA

2000-01-28

R.K.PATRA

body2000
JUDGMENT : R.K. Patra, J. - In this revision, the Petitioner who was the first party in the proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') seeks to revise the order dated 18.11.1992 of the Executive Magistrate, Puri passed in Misc. Case No. 585 of 1982 whereby the possession of the opposite parties (Second Party members) has been declared in respect of the disputed land. 2. The Petitioner filed an application (vide Criminal Misc. Case No. 585 of 1982) u/s 144 of the Code before the Sub divisional Magistrate (Sadar), Puri to restrain the opposite parties from enter in upon the disputed land on the allegation that they had no right, title and possession over it. On 16.11.1982 the learned Magistrate after perusing the report of the Officer-in-charge was satisfied that there was apprehension of imminent breach of peace and directed to start proceeding u/s 144 of the Code against members of both, the parties and adjourned the case. The parties appeared and filed their written statements'. By order dated 12.1.1983 the learned Magistrate converted the proceeding to one u/s 145 of the Code by observing as follows: It is found from the documents filed by both parties that possession over the suit land which cannot be settled in a Proceeding u/s 144, Code of Criminal Procedure Both the practised their respective evidence on the basis of which the learned Magistrate by order dated 19.11.1986 declared the possession of the opposite parties. The Petitioner challenged the said order by filing Criminal Revision No. 35 of 1987 in this Court. By order dated 17.6.1992 this Court set aside the order of the learned Magistrate and remitted the matter to him for fresh disposal according to law. After remand, the learned Magistrate heard the parties and by the impugned order declared possession of the opposite parties in respect of the disputed land which is the subject matter of challenge in this revision. 3. Despite valid service of notice on the opposite parties they have not chosen to appear. 4. The total extent of the disputed land is Ac. 3.61 dec. appertaining to plot Nos. 951, 952, 1038, 1021,843,419,420 and 452 in Mouza Sripurushottampur under Delanga Police Station. The case of the Petitioner is that on Nilakantha Mishra and Michu Mishra were intermediaries in respect of the disputed land. 4. The total extent of the disputed land is Ac. 3.61 dec. appertaining to plot Nos. 951, 952, 1038, 1021,843,419,420 and 452 in Mouza Sripurushottampur under Delanga Police Station. The case of the Petitioner is that on Nilakantha Mishra and Michu Mishra were intermediaries in respect of the disputed land. One Kulamani Baral was sikimi tenant under them who died without any issue. After his death, the intermediaries entered into possession of the disputed land and while in khas possession they transferred it to the Petitioner by way of sale in 1962 and since then he had been in possession. After vesting of the intermediaries interest, the disputed land was also settled with him and he has been payment for it. The case of the opposite parties on the other hand is that Kulamani Baral was the occupancy raiyat in respect of the disputed land and was in khas possession of it and after his death, his adopted son Banamali (husband of opposite party No. 1) possessed the same as successor-in-interest and in that capacity the opposite parties claim possession. 5. For disposal of this revision, it is necessary to briefly indicate certain essential facts. The opposite parties have filed O.S. No. 385 of 1966 in the Court of Munsif, Puri for confirmation of possession and for permanent injunction and in the alternative for recovery of possession of the disputed land. The Petitioner was Defendant No. 1 in the said suit. On 9.2.1970 the suit was decreed. Title Appeal No. 45/34 of 1970 filed by the Petitioner was dismissed. Against the said decision of dismissal, Petitioner filed Second Appeal No. 215 of 1971. By the judgment dated 17.1.1975 this Court vacated the decree and the suit was remitted to the trial Court for disposal according to law. After remand - the learned Munsif by judgment dated 20.12.1976 dismissed the suit. The opposite parties preferred appeal against it in Title Appeal No. 40/13 of 1977 in the Court of Subordinate Judge, Puri which was dismissed on 24.2.1978. In the judgment dated 20.12.1976 the learned Munsif recorded the following finding in favour of the Petitioner (defendant No. 1): It is duly proved that the Defendant No. 1 was in possession of the suit lands at the time of vesting and the rent schedules have been granted in his favour after proper notice in the claim cases referred to above. So, the Defendant No. I must be held as in possession of the suit lands since the date of vesting and prior to it. 6. Shri Sahoo, learned Counsel contended that in the previous civil litigation between the parties, the possession of the disputed land with the Petitioner having been found, the learned Magistrate ought to have respected the decree of the civil Court and ought not to have declared possession of the opposite parties particularly when they did not claim to have made re-entry into the land after the final termination of civil litigations against them. In support of his contention he placed reliance on the decisions of the this Court in Muralidhar Naik and Another Vs. Chatrubhuja Padhan and Others, ; Arjuna Prusty Vs. Hama Barik and Others, and Giridhari Rout v. Bai alias Bairagi Parida 1998 (I) OLR 560. 7. May it be stated that the Magistrate under Sub-section (4) of Section 145 of the Code is to decide on inquiry and give a finding as to whether any/or which of the opposite parties was in possession of the disputed property at the date of preliminary order. The words "if possible" occurring in Sub-section (4) indicate that in a given case if the Magistrate finds it difficult to decide the question of possession, he can proceed u/s 146 of the Code. While deciding the question of possession he should not enter into the arena of a party's title or right to possession of the land. In support of possession, the party may lead evidence and one of the items of evidence may include the decree of civil Court. The decree of civil Court declaring possession or delivery of possession is a piece of evidence which has to be given due weight and respect. If it is a recent decree, it gets further credence. That is the reason why in the decisions of this Court referred to by Shri Sahoo emphasis has been laid that a party claiming possession in the teeth of the civil Court decree has to plead and establish that he has made re-entry into the land after final termination of civil litigation against him. 8. That is the reason why in the decisions of this Court referred to by Shri Sahoo emphasis has been laid that a party claiming possession in the teeth of the civil Court decree has to plead and establish that he has made re-entry into the land after final termination of civil litigation against him. 8. In the case at hand, besides the oral evidence the Petitioner filed the civil Court decree dated 20.12.1976 wherein his (petitioner) possession was upheld but from the date of decree and initiation of the present proceeding six years had lapsed. of course the opposite parties have not pleaded or adduced any evidence that after they lost the final battle in the civil suit, they re-entered into the disputed land. 9. For the aforesaid reason, I would have vacated the impugned order and directed the learned Magistrate to dispose of the matter afresh according to law by I am not inclined to adopt that procedure for the simple reason that the proceeding had commenced in the year 1982 and in the meantime 18 years have gone by and the learned Counsel for the Petitioner is noting a position to say as to whether in the meantime any of the parties had gone to any other appropriate forum to vindicate his grievance. 10. In the result, the revision is dismissed. Final Result : Dismissed