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Kanduri Charan SwaIn and ors. Vs. Birabhadra SwaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in26(1960)CLT519; 1961CriLJ520
AppellantKanduri Charan SwaIn and ors.
RespondentBirabhadra SwaIn and ors.
Excerpt:
.....not good law]. - 3. thus on the admission of the first party themselves as well as from the long gap of nearly six months between the date of passing of the final order by the magistrate in favour of the 2nd party under section 144 cr......of initiation of the proceeding under section 145 cr. p.c. there can be no doubt that the second party's possession was established.4. doubtless if a proceeding under section 144 cr. p.c. immediately (precedes a proceeding under section 145 and the disputed property remains under attachment in the custody of the court on the commencement of the proceeding under section 144 cr. p.c. no party can take advantage of the final order that might have been passed to favour of either party in the proceeding under section 145 cr. p.c. and the relevant date for ascertaining the possession of either party will be the date on which, the proceeding under section 144, cri. p.c. commenced. but here there was a gap of nearly 6 months between the termination of the proceeding under section 144 cr. p.c......
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a revision petition against the final order passed on 12-1-60 under Section 145 of the Criminal Procedure Code by a First Class Magistrate, Cuttack declaring the members of the first party (opposite party) to be in possession of the disputed property which consists of A2-33 decimals in village Nachipara.

2. Both parties claimed to be in actual possession of the disputed land as bhag tenants. There was a proceeding under Section 144 of the Criminal Procedure Code initiated by the Sub-divisional Magistrate, Sadar on 3-12-57 in respect of the disputed properties between the said parties. The Sub-divisional Magistrate restrained both parties from entering upon the property by his order dated 13-12-57. Subsequently on 23-12-57 after hearing both the parties he made the order under Section 144 absolute against the first party but vacated the order against the second party petitioners. The second party were thus able to get possession of the lands and they actually harvested the crops standing thereon. Thereupon the first party filed a petition before the District Magistrate under Section 144(4) of the Criminal Procedure Code for rescinding the order of the Magistrate under Section 144. The District Magistrate attached the said crops but after hearing the parties on 3-3-58 did not pass an order in favour of either party but directed the Magistrate to start a proceeding under Section 145 of the Criminal Procedure Code.

The result was that so far as actual possession. of the plot was concerned there was no stay order by the District Magistrate and the second party, who was successful in the proceeding under Section 144 Cr. P.C. on 23-12-57 must be held to have regained possession of the property on that day. The proceeding under Section 145 Cr. P.C. was initiated only on 12-5-58. The result was that for a period of nearly six months from 27-12-57 to 12-5-58 the second party was in actual possession of the land.

Even in the written statement of the first party in the proceeding under Section 145 Cr. P.C. they never alleged that after the passing of the order of the District Magistrate on 3-3-58 they regained possession of the plots. On the other hand, their case, as made out in paragraphs 2 and 5 of their written statement was that they were in possession till the commencement of the proceeding under Section 144 Cr-P.C.

3. Thus on the admission of the first party themselves as well as from the long gap of nearly six months between the date of passing of the final order by the Magistrate in favour of the 2nd party under Section 144 Cr. P.C. and the date of initiation of the proceeding under Section 145 Cr. P.C. there can be no doubt that the second party's possession was established.

4. Doubtless if a proceeding under Section 144 Cr. P.C. immediately (precedes a proceeding under Section 145 and the disputed property remains under attachment in the custody of the court on the commencement of the proceeding under Section 144 Cr. P.C. no party can take advantage of the final order that might have been passed to favour of either party in the proceeding under Section 145 Cr. P.C. and the relevant date for ascertaining the possession of either party will be the date on which, the proceeding under Section 144, Cri. P.C. commenced. But here there was a gap of nearly 6 months between the termination of the proceeding under Section 144 Cr. P.C. and the commencement of the proceeding under Section 145 Cr. P.C. During this period the second party's possession of the crops seems to be beyond doubt. This possession ought to have been respected by the trial Court leaving the aggrieved party to fight out his claim in the appropriate Civil or Revenue Court, as the case may be. For these reasons the final order of the Magistrate dated 16-1-60 is set aside, possession of the second party over the disputed lands is declared and the first party (opposite party) are restrained from interfering with their possession until evicted in the course of law. The attached crops should be released in favour of the second party (petitioners).


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