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2002 DIGILAW 2 (ORI)

Anam Sahu v. Suphala Behera

2002-01-07

P.K.TRIPATHY

body2002
JUDGMENT P. K. TRIPATHY, J. — The aforesaid two revisions arise out of the same order dated 16.11.1993 passed by the learned Executive Magistrate, Angul in C. P. III Case No. 252 of 1993, a proceeding ultimately disposed of in accordance with the provision in Sec¬tion 145, Cr.P.C. 2. The first party in the aforesaid proceeding is the petitioner in Criminal Revision No. 187 of 1997 and the 2nd party members are the opposite party members. Out of them, opposite party No. 3/second party No. 3 having died in the meantime and not being substituted, his name has been struck up from the record. Second party Nos. 2 and 3 are the sons of Second party No. 1. The Second party No.1 Suphala Behera filed Criminal Revi¬sion No. 16 of 1997 in the Court of Sessions Judge, Dhenkanal, and on being transferred to the file of Addl. Sessions Judge, Angul that was renumbered as Criminal Revision No. 16/126 of 1997. Because the same impugned order is under consideration in Crimi¬nal Revision No. 187 of 1997, therefore, as per the order of this Court the said Crl. Revision was called for hearing and disposal by the High Court and that is how that revision was renumbered as Crl. Revision No. 115 of 2001 in this Court. Argument in both the cases was heard analogously and this judgment shall abide the result in both the aforesaid Criminal revisions. 3. A strip of land six feet in width and sixty feet in length adjoining on North-Eastern direction of plot No. 129 is the disputed case land. That land (disputed case land) is a part of plot No. 120. Plot No. 129 admittedly belongs to the first party, whereas plot No. 120 was mutated in the name of the second party No. 1 i.e. Suphala Behera as back as in the year 1994. The claim of possession of the first party is on the ground of long user of the disputed case land as a passage from his house stand¬ing on plot No. 129 to the National Highway. The first party claims such user for over a period of 30 years. Besides that, he also claims right and possession over the disputed land on the basis of an unregistered document of transfer dated 25.4.1992 said to have been executed by the second party No. 1. The first party claims such user for over a period of 30 years. Besides that, he also claims right and possession over the disputed land on the basis of an unregistered document of transfer dated 25.4.1992 said to have been executed by the second party No. 1. On the other hand, the second party No. 1 claims right, title and interest over that land denying to the transfer of right legally and validly through the unregistered documents dated 25.4.1992 in favour of the first party. Since construction of a pillar was undertaken by the second party that gave rise to apprehension of breach of peace and initiation of the aforesaid proceeding ini¬tially under Section 144, Cr.P.C. The prohibitory order was passed on 16.11.1993, but on 18.2.1994 the proceeding was con¬verted to one under Section 145, Cr.P.C. in the following manner : “The advocate for the first party is present. The advocate for the second party has submitted hazira but absent on call. Heard to the arguments of the learned advocate appearing for the first party and perused the document submitted by the first party. I am convinced from the argument and document submitted by the advo¬cate for the first party that there is dispute regarding posses¬sion of the case land. Hence the case under Section 144, Cr.P.C. is to be closed as the time period for it is over. A case under Section 156 (1) is to be initiated forthwith to arrive at the conclusion. Intimate both the parties to file their written statement. Preliminary order under Section 146 (1), Cr.P.C. is promul¬gated to restrain both the parties. Case to 7.3.94.” 4. The second party, after her appearance and after the aforesaid order, filed her written statement but later on raised objection before the Court below relating to maintainability of the proceeding, but that application was rejected by the learned Magistrate on 5.9.1994 on the ground of existence of apprehension of breach of peace concerning possession and deciding to deter¬mine the same on the basis of an enquiry so as to avoid a clash between the parties. Thereafter, both the parties adduced both oral and documentary evidence before the Magistrate and after completion of that enquiry learned Magistrate passed the impugned order on 13.2.1997 stating that the dispute being a civil dispute between the parties he was not inclined to declare possession of the disputed land in favour of any of the parties and directed the parties to approach the appropriate forum and until then attached the subject matter of dispute in accordance with the provision in Sub-sec. (1) of Section 146, Cr.P.C. 5. Contention raised and the prayer made by the first party (petitioner in Crl. Revision No. 187 of 1997) is that the evidence on record being unfailingly proving his possession, the impugned order be set aside and his possession over the disputed case land be declared under Section 145, Cr.P.C. On the other hand, the second party No. 1 (petitioner in Crl. Revision No. 115 of 2001) has challenged the impugned order on the grounds that converting the proceeding from 144, Cr.P.C. to a proceeding under Section 145, Cr.P.C. as per the above quoted order, is without jurisdiction and in the absence of a preliminary order continu¬ance of the proceeding under Section 145, Cr.P.C. is illegal and therefore, the impugned order be set aside. 6. Contention regarding want of jurisdiction of the Magis¬trate to convert the proceeding is taken up first being in the nature of preliminary issue. The prohibitory order under Sub-section (1) of Section 144, Cr.P.C. being passed on 16.11.1993 because of the provision in Sub-section (4) of Section 144, Cr.P.C. that order could have continued maximum for a period of two months. Admittedly, by 18.2.1994 that period of two months had just expired. The prohibitory order under Sub-section (1) of Section 144, Cr.P.C. being passed on 16.11.1993 because of the provision in Sub-section (4) of Section 144, Cr.P.C. that order could have continued maximum for a period of two months. Admittedly, by 18.2.1994 that period of two months had just expired. It appears from the above quoted order dated 18.2.1994 that learned Magistrate did not convert the proceeding from one under Section 144, Cr.P.C. to that under Section 145, Cr.P.C. because he specifically mentioned that “Hence the case under Section 144, Cr.P.C. is to be closed as the time period for it is over.” The next sentence, which is material for the present purpose, is that “A case under Section 145 (1) is to be initiated forthwith to arrive at the conclusion.” In view of that position on record, the ratio in the case of Tapasya Behera and another v. Padma Charan Behera, 1996 (II) OLR 337, which is relied on by the second party, is not applicable in asmuch as here there is no attempt made to convert the proceeding in the manner which was done in that reported case. In that context the second party also referred to the case of *Sri Dhirendranath Swain v. Hadi Raul, (2000) 18 OCR 613. In that case while disposing an application under Section 144, Cr.P.C. learned Magistrate directed the par¬ties to maintain status quo until the matter is decided by the competent Civil Court and this Court found such direction to be without jurisdiction and an observation was made that where there is a dispute between the parties concerning land or water giving rise to apprehension of breach of peace, then the appropriate proceeding should be one under Section 145, Cr.P.C. That ratio is also of no relevance so far as the present dispute is concerned. It is clear from the narration of facts and the relevant order, i.e. order dated 18.2.1994 that it was not a case of converting the proceeding, but two days after expiry of two months the Magistrate directing for deciding the dispute in accordance with Section 145, Cr.P.C. 7. In the above context the lower Court has also referred to the case of Padma Charan Behera and others v. Prafulla Chandra Naik and others, Vol XLI 1975 CLT 1001. In the above context the lower Court has also referred to the case of Padma Charan Behera and others v. Prafulla Chandra Naik and others, Vol XLI 1975 CLT 1001. The Division Bench while in seisin of somewhat a similar matter have propounded that technicalities is not sustainable as against the substantial justice and accordingly defects in drawing the preliminary order per se is not illegal unless the party aggrieved by that order urges and satisfies the Court that because of such order he has been prejudiced or an illegality which is manifest in nature has perpetrated the whole adjudication process. It was also propound¬ed by the Division Bench that : “7. It has been authoritatively pronounced in Shibnarayan Das and others v. Satyadeo Prasad and another (ILR 33 Cal. 33) and Kulada Kinkar Roy v. Dinesh Mir, (ILR 1958 Cuttack 253) that unless the initial order is challenged as being in excess of jurisdiction the final order cannot be assailed. The exercise is of powers of the High Court under Section 439, Criminal Procedure Code is discretionary. The discretion will not be invoked in favour of a party who is not vigilant and took advantage of the proceeding by taking part therein and by adducing necessary evidence until an adverse judgment is pronounced. The petitioners were waiting for the off chance that they might get a favourable order in their favour in which case they would not have raised this objection. Court would not assist a party who does not come with clean hands.” 8. In this case admittedly at the stage of filing of written statement an application was filed by the second party to drop the proceeding under Section 145, Cr.P.C. That application was disposed of by learned Magistrate on 5.9.1994 by rejecting that application on the ground of existence of dispute between the parties concerning possession of the disputed case land and thereafter the second party did not challenge that order in any higher forum though forums were available to her. On the other hand, both the parties adduced evidence and participated in the proceeding under Section 145, Cr.P.C. submitting to the jurisdic¬tion of the Magistrate under that prevision. Under such circum¬stance, the contention of the second party regarding lack of jurisdiction, which is not correct in its true sense, is not entertainable after the proceeding has terminated in the impugned manner. Under such circum¬stance, the contention of the second party regarding lack of jurisdiction, which is not correct in its true sense, is not entertainable after the proceeding has terminated in the impugned manner. Apart from that there is no dispute regarding the dispute between the parties concerning possession of that land and exist¬ence of apprehension of breach of peace arising out of that. When technical pleas advance an in-road on the field of advancement of substantial justice, a Court is to prefer the later to overthrow the former. As rightly propounded by the apex Court “Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." (See Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 ). Therefore, this Court, in a nut-shell, finds that the aforesaid technical flaw in the proceeding was not to render the proceeding under Section 145, Cr.P.C. non-maintainable though technically it is true to say that regular preliminary order was not passed or promulgated in the manner provided in Section 145, Cr.P.C. The fact remains that the parties contesting the claim of possession are aware of the identity of the land and the nature of the dispute and existence of breach of peace which is appre¬hended on that account. Therefore, this Court is not inclined to allow the prayer in Crl. Revision No. 115 of 2001. 9. So far as the contention of the first party is concerned, his claim is to declare the factum of possession in his favour on the basis of evidence on record. In that respect, argument of the second party No. 1 is that the evidence on record clearly proves a case of possession in her favour. Learned Magis¬trate after noting the substance of the evidence from both the parties has passed order directing the parties to go to the Civil Court. The aforesaid attitude of the learned Executive Magis¬trate is far from due discharge of his duty to adjudicate the dispute in- asmuch as the evidence on record is not that confus¬ing or conflicting so as to make the Magistrate unable to decide the factum of possession in favour of the actual party in posses¬sion. This Court refrains from discussing the evidence, because in that respect learned Magistrate has yet to record a finding. This Court refrains from discussing the evidence, because in that respect learned Magistrate has yet to record a finding. For the benefit of the learned Magistrate it may be noted that the contradictions which he has noted from the evidence relating to the numbers of overt acts are ignorable in nature and they by themselves do not constitute the ground to disbelieve the plea of possession of either of the parties. A Magistrate after conduct¬ing a full fledged inquiry cannot off-load himself by direct¬ing the parties to approach the Civil Court. It is the Civil Court undoubtedly which has the jurisdiction to decide the factum of title as well as possession. But when there exists a dispute resulting in apprehension of breach of peace concerning posses¬sion of land, water or boundary thereof, then a Magistrate is called upon to adjudicate that dispute only for the purpose of preventing the apprehension of breach of peace and not to decide the rights of the parties. That being the limited jurisdiction of the Magistrate, he is expected to perform the same responsibly and sincerely by recording a proper finding on due assessment of evidence on record. Learned Magistrate has failed to discharge his duty in this case. Under such circumstance, while setting aside the impugned order in which direction has been given to the parties to seek redressal in the Civil Court, this Court directs the Executive Magistrate to decide the case in accordance with law as provided in Section 145, Cr.P.C. If at all the Executive Magistrate shall feel that he is not in a position to decide the factum of possession in favour of either of the parties, then he must indicate the reason thereof, i.e. the nature of the evidence and point of dilemma for which he is unable to decide the factum of possession in favour of either of the parties. Since the evidence is already on record, as per the aforesaid order, learned Executive Magistrate is to simply hear the argument of the parties afresh, peruse the evidence and to determine the factum of possession in accordance with law as far as practicable within a period of one month from the date of receipt of a copy of this order along with the LCR. To save the case from delay on account of service of notice on them by the lower Court, it is directed that both the parties shall appear before learned Execu¬tive Magistrate on 8th February, 2002 when the date of hearing argument shall be fixed. If either or both the parties shall default to appear then they shall not be entitled to fresh or further notice and in that event it will be appropriate for the learned Magistrate to decide the case in accordance with law without waiting for appearance of the defaulting party/parties. 10. In view of the above order, the impugned order is set aside and the case is remanded for adjudication in the manner indicated above and Criminal Revision No. 187 of 1997 is allowed accordingly. Registry is directed to send back the LCR to the Executive Magistrate along with a copy of this order and to ensure its reaching there prior to 8th of February, 2002. Crl. Revision No. 187/1997 allowed.