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2007 DIGILAW 417 (ORI)

Kamalakanta Gir v. Atula Kumar Giri

2007-06-18

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. — Circumventing the provision of Sub-section (3) of Section 397 of Cr.P.C. this Criminal Misc. Case has been filed invoking inherent jurisdiction of this Court under Section 482 of the Cr.P.C. According to the opposite party he had pur¬chased the disputed land from his uncle Ainthu Giri by a regis¬tered sale deed dtd.17th April, 1982 and since that date he is in peaceful possession thereof. It is alleged that the present petitioners without having any right, title, interest and posses¬sion over the said lands created disturbance in the possession of the opposite party for first time on 9th July, 1987 and threat¬ened to assault and murder the opposite party. Consequently the opposite party filed a petition under Section 145 of the Cr.P.C. before the Executive Magistrate, which was registered as Crl. Misc. Case No.486/1989. 2. The present petitioners who were members of second party before the Executive Magistrate took the stand that the disputed land was the ancestral joint family property of both the parties and the same fell to the share of Ainthu Giri in an amicable distribution among the co-sharers. The said Ainthu Giri had entered into an agreement with them as long back as in the year 1980 to alienate the property in their favour. He had also taken a part of the consideration money and handed over posses¬sion of the same to them. It is further alleged that since 1980 they are in possession of the disputed land and that the 1st party member had never possessed the same. 3. Learned Executive Magistrate after analyzing the evi¬dence adduced by both the parties came to the conclusion that the registered sale deed produced by 1st party member revealed that he had purchased the land from Ainthu and after discussing the evidence come to the conclusion that he is in physical possession of the disputed land and declared his possession. 4. Being aggrieved the petitioners who were second party members filed Crl. Revision No.2/1993 before the Sessions Judge, Keonjhar. Learned Sessions Judge after hearing learned counsel for both the parties and after perusing the evidence both oral and documentary observed that though the petitioners took the plea that they were in possession of the disputed land from the time of execution of the agreement dtd.24th March, 1980, but failed to prove their nature of possession. Learned Sessions Judge after hearing learned counsel for both the parties and after perusing the evidence both oral and documentary observed that though the petitioners took the plea that they were in possession of the disputed land from the time of execution of the agreement dtd.24th March, 1980, but failed to prove their nature of possession. It was further ob¬served that neither in the show cause nor in the evidence any materials were produced to prove the specific nature of posses¬sion. On the basis of such observation, the revisional Court held that the learned Executive Magistrate had rightly arrived at a conclusion that they were not in possession of the disputed land and the order does not suffer from any infirmity. 5. The said order is assailed mainly on the ground that both the Courts below have not properly appreciated the evidence and in fact in consonance with the agreement they are in posses¬sion of the lands and that apart the sale deed does not disclose any specific land nor the disputed land was described properly in the petition filed under Section 145 of Cr.P.C. and as such the Courts below ought have dismissed the case. Law is well settled that an agreement which needs to be looked into is as to whether the petitioners were in possession of the lands in dispute. 6. I have heard learned counsel for the parties at length and perused the materials available. To prove physical possession the opposite party had got himself and other examined as witness¬es and their evidence is more convincing. Both the Courts below have discussed the evidence, both oral and documentary, and have rightly come to the conclusion that the petitioners were not in possession of the disputed lands. The findings of fact do not suffer from any absurdity. There is also no error apparent on the face of the record. 7. After going through the impugned order, I do not find any infirmity or illegality. Even otherwise a second revision in the garb of a Crl. Misc. Case is not maintainable. Consequently the Crl. Misc. Case is dismissed. Crl. Misc. Case dismissed.