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2004 DIGILAW 142 (ORI)

SATYABAN MEHER v. STATE OF ORISSA

2004-03-09

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - The judgment and order passed by the learned Additional Sessions Judge, Sonepur in Criminal Revision No. 69/29 of 1999 remanding the matter back to the Executive Magistrate, Ramapur for reconsideration in a proceeding u/s 147 of the Code of Criminal Procedure is the subject-matter of challenge before this Court. 2. The present Petitioner filed a petition u/s 147 Criminal Procedure Code before the Executive Magistrate, Rampur which was registered as Criminal Misc. Case No. 37 of 1998. Case of the Petitioner is that one Ghasi Meher since deceased was the recorded tenant in respect of holding plot No. 153 and 654/456 (1007), 457 (1008) and 465 (1029) in village Digsira. He is possessing the said land since his fore-fathers. The Petitioner is the son of said Ghasi Meher and after death of his father he is in possession thereon. It is further alleged that there a natural water course going through the Petitioner's land as well as opposite party No. 2 and the opposite party No. 2 had purchased a piece of it from one Mahabir Prasad Agrawal. The opposite party No. 2 obstructed the water flow in Khata No. 541 of final consolidation R.O.R. in plot No. 2125 and 2409, as a result of which water gathering in the land of the Petitioner, could not flow resulting in damage of the crops. It was also not possible on the part of the Petitioner to cultivate lands because of stagnation of water. It is further alleged that the opposite party No. 2 was creating disturbance in agricultural operation by blocking water flow in it's natural course which resulted in serious apprehension of breach of peace between the parties. A prayer was therefore made to prevent the opposite party No. 2 from blocking water passage. 3. On the basis of such allegations, a proceeding was initiated and the parties adduced evidence before the learned Magistrate and ultimately the learned Magistrate by order dated 28.8.1998 allowed the application and directed the opposite party No. 2 to remove the obstruction for free flow of water and interference in the same by the opposite party No. 2 was prohibited. Challenging the said order of the learned Executive Magistrate the opposite party No. 2 filed Criminal Revision No. 69/29 1999 before the learned Additional Sessions Judge, Sonepur. Challenging the said order of the learned Executive Magistrate the opposite party No. 2 filed Criminal Revision No. 69/29 1999 before the learned Additional Sessions Judge, Sonepur. Learned Additional Sessions Judge allowed the revision and remanded the matter back to the learned Executive Magistrate for fresh disposal holding that there is no material on record to show that the land in possession of the Petitioner is at a higher level than that of opposite party No. 2 and that the opposite party No. 2 not being owner of the land the proceeding was not maintainable against him and owner of the land who is son of the opposite party No. 2 should have been impleaded as party. 4. Shri. Dhal, Learned Counsel appearing for the Petitioner submitted that the finding of the learned Additional Sessions Judge that there is no material on record to show that the lands possessed by the Petitioner is at a higher level than that of opposite party No. 2, is based on no material and there is evidence available on record to show that the lands in possession of the Petitioner is at a higher level than that of the opposite party No. 2 and there was a 'Nala' existing on the lands in possession of both the parties for passage of water to low lands of the village. Such finding is an error of record according to Sri Dhal, Learned Counsel for the opposite party No. 2, on the other hand, submitted that this being a second revision, there is no scope of appreciating evidence and unless there is absolute illegality in the order passed by the revisional court, this Court may not interfere in the impugned order. 5. From the discussions made by the revisional court, it appears that on consideration of evidence adduced before the learned Executive Magistrate the revisional court formed an opinion that from the document point of view there is no evidence to show that there was a 'Nala' over the disputed land and that the Petitioner had his land at higher level than that of opposite party No. 2. From the discussions made by the Executive Magistrate, it appears that referring to oral evidence before the court the learned Magistrate formed opinion that the land in occupation of the Petitioner was at higher level than that of opposite party No. 2. From the discussions made by the Executive Magistrate, it appears that referring to oral evidence before the court the learned Magistrate formed opinion that the land in occupation of the Petitioner was at higher level than that of opposite party No. 2. Reference, in this connection, may be made to the documents filed before the court and as it appears no document filed before the court indicates existence of a 'Nala' for flow of water, whereas oral evidence has been adduced before the court to show that there was a 'Nala' existing on both the plots for free flow of after. In such eventuality, in my view, the learned Magistrate should have called for a report from the local R.I. in this regard. Apart from the above, main important factor is that the opposite party No. 2 admittedly is not the owner of the plot over which it is alleged that the 'Nata' has been blocked. Sale-deed stands in the name of son of opposite party No. 2 who admittedly is not a party before the court. It was contended by the Learned Counsel for the Petitioner that the land was purchased by the opposite party No. 2 benami in the name of his son. Even accepting such a position also since the registered sale deed under which the land had been purchased indicates that the son of opposite party No. 2 is the purchaser, he should have been made a party to the proceeding and in his absence no effective order could be passed. On this score, I do not find any infirmity in the order of the learned Additional Sessions Judge. 6. Shri. Dhal, Learned Counsel appearing for the Petitioner cited a decision of this Court in the case of Niranjan Behera and Anr. v. Laxmidhar Jena and Ors. reported in 1990 (1) OLR 514 to indicate the procedure to be followed by a Magistrate in a proceeding u/s 147 Criminal Procedure Code There is no dispute about the proposition of law laid down in that case and similar view was also taken by this Court in the case of Prafulla Kumar Bal and Ors. v. Dharanidhar Das and Ors. reported in (1995) 8 OCR 407. Since owner of the disputed plot over which it is alleged that the 'Nala' passes and blockage was done by opposite party No. 2. v. Dharanidhar Das and Ors. reported in (1995) 8 OCR 407. Since owner of the disputed plot over which it is alleged that the 'Nala' passes and blockage was done by opposite party No. 2. is not a party before the Court, no effective order u/s 147 Criminal Procedure Code can be passed. I, therefore, do not find any infirmity in the order of the revisional court in remanding the case to the learned Executive Magistrate for reconsideration in accordance with law. I only further add to the direction of the learned Additional Sessions Judge that owner of the plot who is said to be son of opposite party No. 2 be added as party to the proceeding and if on existing materials the learned Magistrate is of the view that it may not be possible to come to a conclusive finding as to whether there was a 'Nala' or not, help of local R.I. be taken directing him to submit a report in this regard. While deciding the case the learned Executive Magistrate shall also take into consideration the judgment of the Apex Court in the case of Patneedi Rudrayya Vs. Velugubantla Venkayya and Others, . 7. With the aforesaid observation and direction, the revision is dismissed. Final Result : Dismissed