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Bishnu Charan Naik Vs. Harihar Sabu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in57(1984)CLT334; 1984CriLJ836
AppellantBishnu Charan Naik
RespondentHarihar Sabu and ors.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....and setting aside the order of the executive magistrate, boudh in a proceeding under section 145 criminal procedure code.2. on a petition filed by the petitioner, criminal misc. case no. 40/78 was instituted under section 144 criminal procedure code wherein, the preliminary order restraining the opposite parties from entering upon the land in question was passed on 18-7-1978. after hearing the objection filed by narayan sahu one of the members of the 2nd party-opposite party no. 4 in this revision petition, the proceeding was converted to one under .setcion 145 criminal procedure code. the disputed land is 0.62 cents in plot no. 374 under holding no. 91 in village godubhelipadar. for the very same land another proceeding bearing no. 121 of 1979 under section 145 criminal procedure code.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. This revision is directed against the order dated 9-7-1981 by the Sessions Judge, Ganjam-Boudh, Berhampur in Criminal Revision No. 8 of 1980-81 and setting aside the order of the Executive Magistrate, Boudh in a proceeding under Section 145 Criminal Procedure Code.

2. On a petition filed by the petitioner, Criminal Misc. Case No. 40/78 was instituted under Section 144 Criminal Procedure Code wherein, the preliminary order restraining the opposite parties from entering upon the land in question was passed on 18-7-1978. After hearing the objection filed by Narayan Sahu one of the members of the 2nd party-opposite party No. 4 in this revision petition, the proceeding was converted to one under .Setcion 145 Criminal Procedure Code. The disputed land is 0.62 cents in plot No. 374 under holding No. 91 in village Godubhelipadar. For the very same land another proceeding bearing No. 121 of 1979 under Section 145 Criminal Procedure Code was instituted between the same parties on a Police report. Both the proceedings were taken-up together and were disposed of by a common order by the learned Magistrate.

3. The gist of the case of the petitioner (1st party) was that he purchased the disputed land from Durjyadhan Sahu s/o Brundaban Sahu, on 15-4-1978 through a registered sale deed and got delivery of possession of the same. Prior to the purchase, this land had been mortgaged to his son Nityananda Naik, by Durjyadhan Sahu since 5-3-1974. As the opposite parties interfered with his possession of the disputed land some time in July, 1978, the petitioner filed an application before the Executive Magistrate, Boudh under Section 144 Criminal Procedure Code to restrain them from entering upon the disputed land. The police also started a case under Section 145 Criminal Procedure Code against both the parties in respect of the very same land.

The case of the opposite parties, on the other hand, was that the disputed land is a part of the joint family property of the opposite parties and Brundaban Sahu, father of Durjyadhan Sahu has been in possession and enjoyment of the same. They denied to have created any trouble over the land in question and asserted that there is no anprehension of the breach of peace. They further stated that though sale deed was executed in favour of the petitioner by Durjyadhan Sahu, no delivery of possession was given. According to them, the petitioner has no right, title, interest and possession overthe land in question.

Both parties placed materials in sun-port of their case. The learned Magistrate by his order dated 19-5-1980 declared that the petitioner, Bishnu Charan Naik (Ist party) was in possession of the land at the time of the prelminary order. The opposite parties challenged the said order in revision before the Sessions Judge against the said order. The learned Sessions Judge by his order dated 9-7-1981 vacated the order of the learned Magistrate and directed the proceeding under Section 145 Criminal Procedure Code to be dropped. He did not accept the case of the petitioner mainly on the ground that since the disputed land was admittedly recorded in the name of Gobinda Sahu, who had four sons and in the absence of any material to show that there was a partition of the properties of Gobinda Sahu, the claim of exclusive possession by Durjyadhan Sahu cannot be accepted.

4. I do not find any infirmity in the order of the learned Sessions Judge go as to call for interference by this Court in revisional Jurisdiction. The position that emerge from the materials on record is that the case land was recorded in the name of Gobinda Sahu who had four sons. There is no material to indicate that there has been any partition of the properties amongst the sons of Gobinda Sahu. Hence, the property is joint family property of all the sons of Gobinda. It is the case of the petitioner that prior to the sale in his favour, the disputed land was mortgaged by Brun-daben and Durjyadhan together on 5-3-1974 in favour of Nityananda which shows that Durjyadhan was not in exclusive possession of the disputed land. There is again no material to show that this mortgage has been redeemed and possession redelivered to Durjyadhan. The opposite parties have obtained a rent receipt dated 28-2-1978 which is indicative of joint possession by members of the family and goes against the claim of exclusive possession by Durjyadhan Sahu, the vender of the petitioner. To add to this, the petitioner in his statement recorded on 18-1-1980 states that during last Asadha delivery of possession of the disputed land was given to him which goes to show that he could not have been in possession of the same on 18-7-1978 when the preliminary order was passed. In view of these materials, the court below was right in his conclusion that none of the parties to the proceeding was in possession of the disputed land on the date of preliminary order and the proceeding under Section 145 Criminal Procedure Code could not be initiated in a case where the property is joint family property and the parties are in joint possession.

5. The revision petition is devoid of merit and the same is accordingly dismissed.


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