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Baishnab Parida and ors. Vs. Subal Bhoi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in45(1978)CLT297; 1978CriLJ1312
AppellantBaishnab Parida and ors.
RespondentSubal Bhoi and ors.
Cases ReferredState of Karnataka v. L. Muniswamy.
Excerpt:
.....provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - the unsuccessful opposite parties in o. proceeding as well as for withdrawal of the order appointing the revenue inspector as custodian of the standing crop. but instead of doing so and proceeding against the unsuccessful party under section 107, cr. law is well settled that it is the duty of the criminal court to respect the decision of the civil court and in this case, the o. if any appeal had been preferred, the unsuccessful opposite party should have made all attempts to obtain a stay order from the appellate court rather than moving the executive magistrate and nullifying the order of the o. be dropped and all protection should be given to the successful party so that they enjoy the fruits of their..........section 145, cr. p.c. and the impugned order therein are as follows : the petitioners and the opposite parties claim possession over certain lands as tenants in several o.l.r. cases. the landlord supported the case of the petitioners. the tahsildar in whose court the o.l.r. cases were pending held the petitioners to be the tenants on 31-5-1977 and rejected the claim of the opposite parties. the o.l.r. cases were pending in the court of the tahsildar for two years. for the first year the revenue inspector had been appointed as receiver. but for the second year, the petitioners were auction-purchasers and thus were in possession and cultivated the lands for the year 1976-77. thus, they are deemed to be in possession till the end of the agricultural year ending on 31st of march, 1977......
Judgment:
ORDER

K.B. Panda, J.

1. In this criminal miscellaneous case, the members of the second party in a proceeding under Section 145, Cr. P.C. are challenging the maintainability of the said proceeding and for withdrawal of the Court's order dated 14-10-1977 wherein the Revenue Inspector, Algum has been appointed as the custodian of the standing crop on the disputed lands.

2. The facts leading to the proceeding Under Section 145, Cr. P.C. and the impugned order therein are as follows : The petitioners and the opposite parties claim possession over certain lands as tenants in several O.L.R. cases. The landlord supported the case of the petitioners. The Tahsildar in whose court the O.L.R. cases were pending held the petitioners to be the tenants on 31-5-1977 and rejected the claim of the opposite parties. The O.L.R. cases were pending in the Court of the Tahsildar for two years. For the first year the Revenue Inspector had been appointed as Receiver. But for the second year, the petitioners were auction-purchasers and thus were in possession and cultivated the lands for the year 1976-77. Thus, they are deemed to be in possession till the end of the agricultural year ending on 31st of March, 1977. The Tahsildar, as already mentioned, declared the petitioners as tenants on 31-5-1977 in respect of the disputed lands. The unsuccessful opposite parties in O.L.R. cases filed a petition on 7-10-1977 for initiation of a proceeding under Section 145, Cr. P.C. The Police reported on 11-10-1977 about the existence of dispute between the parties in respect of possession of the lands and so the Magistrate passed a preliminary order on 14-10-1977. On that day the Magistrate also appointed the Revenue Inspector as the custodian of the standing crop occasioning filing of two petitions challenging the maintainability of the 145 Cr. P.C. proceeding as well as for withdrawal of the order appointing the Revenue Inspector as custodian of the standing crop. These two petitions were rejected by the Executive Magistrate, Puri on 3-11-1977 and hence this miscellaneous case.

3. It was contended by Mr. J. K. Mohanty, learned Counsel for the petitioners that the petitioners having succeeded in the O.L.R. Court, it was the duty of the Executive Magistrate to maintain their possession. But instead of doing so he has given over the lands to the Revenue Inspector thereby acting contrary to the findings of the Revenue Court under the Orissa Land Reforms Act as against which there is no scope for filing a Civil Suit which is barred under Section 67 of the O.L.R. Act. Besides it was contended that the petitioners were auction-purchasers for the years 1976-77 and thus were in possession when the O.L.R. Court passed the decree in their favour on 31-5-1977. As such they had grown the crop of that year. But the Executive Magistrate by his Order dated 14-10-1977 has virutally deprived the petitioners of the crop they had raised by appointing the Revenue Inspector as the custodian of the standing crop.

4. As against this, it was contended on behalf of the opposite parties by Mr. Dora that the order is an interlocutory one and as such should not be interfered with at this stage and that there being existence of likelihood of breach of peace, initiation of a proceeding under Section 145, Cr. P.C. is not improper. It was also contended that the Tahsildar, that is, the O.L.R. Court did not give delivery of possession and so the opposite parties continued in possession and raised the crop for the year 1977-78. According to Mr, Dora, the petitioners were only in possession till the end of Dec. 1976 and opposite parties being stronger got into possession in the year 1977 and had raised crop which the petitioners threatened to cut away and therefore initiation of a proceeding under Section 145, Cr. P.C. was very meet and proper.

5. I would first address myself to the factual aspect of the case. The contention that the petitioners were only in possession till the end of 1976 is baseless. Admittedly they had taken the lands in auction-sale for the year 1976-77. The agricultural year ended with 31st of March, 1977. So they would be presumed to be in possession till the end of March, 1977. The O.L.R. Court declared them (petitioners) to be the tenants in respect of the disputed lands on 31-5-1977. So the contention that the opposite parties being stronger, got into possession and raised the crop is a tall claim which has no legs to stand upon. The further contention that they have preferred an appeal against the order of the O.L.R. Court and because the appellate Court is on tour so they have not been able to obtain any stay order does not improve matters. If any order would have been obtained from the appellate Court that would have been something But since no such orders have been passed, it would be deemed that the O. L. R. Court's order is in operation.

6. The dispute between both the parties in the O. L. R. Court was a rival claim of tenancy in respect of the disputed lands. The word 'tenant' as defined under the O. L, R. Act, means 'a person who has no rights in the land of another; but under the system, generally known as Bhag, Sanja or Kata or such similar expression as under any other system, law, contract, custom or usage personally cultivates such land on payment at rent in cash or in kind or in both or on condition of delivery to that persons.' From this it follows that both the parties were fighting out the O. L. R. cases on the basis that each party was personally cultivating the lands in question. The claim of the opposite parties has been negatived by the O. L. R. Court. So till that order stands, the petitioners will be deemed to be personally cultivating the lands. The grievance made by the opposite parties that possession has been declared in favour of the petitioners due to the support of the landlord avails them not. Under Section 67 of the O. L. R. Act, the Civil Court's jurisdiction has been barred. In the circumstances of the case, there is no question of delivery of possession of die land. As soon as the Court declares one party to be tenants in respect of certain lands it will be deemed that that party is in possession of the land and there will be no subsequent order for delivery of possession as contemplated under the Civil P. C. Thus the successful petitioners in the O. L. R. Court will be for all intents and purposes deemed to be in possession of the lands.

7. The opposite parties filed a petition on 7-10-1977 for initiation of a proceeding under Section 145, Cr. P.C. By Oct. 7th, the crops would have been raised by the petitioners. Therefore the opposite parties are indirectly trying to dispossess the successful first party by starting a proceeding under Section 145, Cr. P.C. The learned Executive Magistrate should have taken these facts into consideration. But without doing so he passed a preliminary order and appointed the Revenue Inspector Algum as the custodian of the standing crop which in the facts and circumstances would have been raised by the petitioners. It was the duty of the Executive Magistrate to protect the possession declared by the O. L. R. Court. But instead of doing so and proceeding against the unsuccessful party under Section 107, Cr. P.C. he has put the successful party in a disadvantageous position. Law is well settled that it is the duty of the criminal Court to respect the decision of the Civil Court and in this case, the O. L. R. Court, such a dispute not being to be agitated in a Civil Court (vide AIR 1968 Ori 239 : 1968 Cri LJ 1629, Pitabas v. Krushna; : AIR1964Ori204 , Banamali Mohapatra v. Baira Nahak and (1970) 36 Cut LT 894, Biramani Sahu v. Parameswar Kuar). The order passed by the Executive Magistrate appointing the Revenue Inspector as the custodian of the standing crop though an interlocutory order, in the circumstances of the instant case is an abuse of the process of the Court for which I am inclined to interfere under my inherent powers (See : 1977CriLJ1125 State of Karnataka v. L. Muniswamy.)

8. Mr. Dora has cited a catena of decisions in support of the proposition that after a Civil Court decree Section 145, Cr. P.C. proceeding can lie. Nobody disputes the proposition that if there is a likelihood of breach of peace in respect of a land such a proceeding can lie, but that is under different set of circumstances, viz., where the Civil Court decree is very old or there is no delivery of possession. It is unnecessary to refer to the citations referred to by Mr. Dora. In the instant case, the dispute between the parties is about possession over the disputed lands. Both the parties fought out the litigation in the O. L. R. Court which decided in favour of the petitioners on 31-5-1977. It is preposterous to hold that the opposite parties being stronger as soon as the O. L. R. Court decided in favour of the petitioners, they forcibly got into possession and raised the crop. The stand of the opposite parties is just to flout the law and therefore it was the duty of the Executive Magistrate to give protection to the petitioners and not to encourage lawlessness by starting Section 145, Cr. P.C. proceeding and appointing the Revenue Inspector as custodian of the crop thereby depriving the successful party from reaping the fruits of the litigation. If any appeal had been preferred, the unsuccessful opposite party should have made all attempts to obtain a stay order from the appellate Court rather than moving the Executive Magistrate and nullifying the order of the O. L. R. Court. Neither on law nor on equity the opposite parties have got a case to be determined in a proceeding under Section 145, Cr. P.C. As such the order passed by the learned Executive Magistrate on 14-10-1977 cannot stand. I would hold that the petitioners should be allowed to continue in possession and reap the paddy of this year and would be allowed to remain in possession until and unless the order of the O. L. R. Court is set aside by the appellate Court. The proceeding under Section 145 Cr. P.C. be dropped and all protection should be given to the successful party so that they enjoy the fruits of their litigation. The opposite parties be proceeded against under Section 107, Cr. P.C. if they want to disturb the possession of the successful party in the O. L. R. Court.

With these observations the Misc. Case is allowed.


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