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2013 DIGILAW 219 (ORI)

Suru Mali v. Pitabash Majhi

2013-07-19

B.R.SARANGI

body2013
JUDGMENT Dr. B.R.Sarangi, J. The Second Party being the petitioner in a proceeding under Section 145 of the Code of Criminal Procedure has assailed the order dated 11.08.2004 passed by the learned Addl. Sessions Judge, Nabarangpur in Cr.R.P. No. 127 of 2000 confirming the order dated 29.12.1999 passed by the learned Executive Magistrate, Nabarangpur in Misc. Case No. 505 of 1996. 2. The present opposite parties, being the legal heirs of the original first party Daimati Mali initiated a proceeding under Section 145 of the Cr.P.C. before the learned Executive Magistrate, Nabarangpur stating that Madhusudan Mali the father of the original first party, Daimati Mali was the original owner in possession of the disputed land and after him, she was in possession. It is further stated that Madhusudan had no son and therefore the second party members had created disturbance. The petitioner being the second party stated that Mukunda, the father of Madhusudan was the original owner in possession of the disputed land and that the second party members are in cultivating possession of the same for about 15 to 16 years prior to the initiation of the proceeding under Section 145 of the Cr.P.C. and that they had perfected their right over case land by adverse possession. It is further stated that the second party members having remained in exclusive possession of the case land and paddy from their exclusive possession has been attached. It is an admitted fact that second party is the grandson of Mukunda being the son’s son. The first party is the grand daughter of Mukunda being son’s daughter. 3. In Misc. Case No. 142 of 1987 which was initiated before the Executive Magistrate, the possession of the second party was declared vide proceeding dated 18.07.1992, which was pronounced on 05.09.1992. However, the matter was remitted back to the Executive Magistrate by the learned Addl. Sessions Judge, Jeypore on 12.1.1996. As per the order of the Revisional Court, opportunity was given to the parties to adduce evidence. After such evidence being adduced, the Executive Magistrate declared possession in favour of the first party. The case was registered as Misc. Case No. 5 of 1996. Against said order of the learned Executive Magistrate the second party filed revision before the learned Addl. Session Judge, Nabarangpur, which was registered as Cr. After such evidence being adduced, the Executive Magistrate declared possession in favour of the first party. The case was registered as Misc. Case No. 5 of 1996. Against said order of the learned Executive Magistrate the second party filed revision before the learned Addl. Session Judge, Nabarangpur, which was registered as Cr. R.P. No. 127 of 2000 with a prayer to set aside the order of the Executive Magistrate. 4. On scrutiny of the evidence and the contention raised by the parties, learned Revisional court has observed that the Executive Magistrate though has mentioned that the first party is entitled to remain in possession has clearly observed that the first party is in possession and declared possession in her favour. Simultaneously it is observed that the question of possession has not been decided by the lower court and from the evidence available on record it reveals that the second party is in possession. Therefore, the Revisional court has held that there are sufficient materials to believe that the second party was in possession of the disputed land and as such the documentary evidence are of much importance. Therefore, it cannot be said that evidence has not been properly scrutinized. So saying, learned Addl. Session Judge, Nabarangpaur held that there is no illegality or irregularity in the finding of the learned Executive Magistrate to justify his interference and accordingly dismissed the said revision being devoid of merit vide impugned order dated 11.08.2004. 5. Heard Sri S.D. Das, learned Senior Counsel appearing for the petitioner and Mr. Manoj Mishra, learned Senior Counsel for opposite party Nos. 1 to 3. 6. After perusing the materials available on record and after going through the impugned order, I find that both parties are striving for scrambling of possession of the disputed property and more so both parties are related to each other. On scrutiny of evidence available on record and appreciation thereof, it is difficult to reach at a definite conclusion with regard to the possession of the parties, unless parties themselves resolve their dispute by approaching the competent civil court by filing a suit claiming right, title and interest over the disputed property. 7. In view of the aforesaid facts and circumstance of the case, the CRLMC is disposed of with a liberty to the parties to seek their remedy before the appropriate civil court. CRLMC disposed of.