SAMA KHADIA Vs. MASI MUNDA

JUDGEMENT

(1.) THE first party in Crl. Misc. Case No. 238 of 1990 of the Court of Sub -divisional Magistrate, Sambalpur (in short, 'SDM') is the petitioner No. 1 besides one of the second party members as petitioner No. 2. The other two second party members are the opposite party in this criminal revision.

(2.) THE subject -matter of dispute is plot No. 1274 of Khata No. 348/54 measuring an area of Ac. 0.78 decimals in village Tabadabahal under Sason Police Station in the district of Sambalpur. The aforesaid Crl. Misc. Case was initiated under Section 145, Cr.P.C. in the Court of SDM at the instance of the first party. He laid claim over the subject -matter of dispute as a beneficiary being settled with that land after the same was found to be ceiling surplus land of the erstwhile land holder Rabindranath Pujhari and after its vesting with the State. He alleged that the second party members having no semblance of right, title and possession created disturbance in his peaceful possession and therefore he sought for the protection under Section 145, Cr.P.C. The second party No. 1/opposite party No. 1 filed written statement and claimed right and possession over the case land on the ground of long possession.

(3.) ON assessment of the said evidence learned SDM found the evidence of first party to be reliable and credible and accordingly accepted the same and declared the possession in his favour vide his judgment and order dated 29.8.1992. Learned SDM did not find the evidence of second party to be reliable. As against that order the second party members preferred a criminal revision in the Court of Session at Sambalpur. Learned Addl. Sessions Judge, Sambalpur vide the impugned judgment dated 22.8.1994 in Cr. Revision No. 4/12 of 1993 held that since the first party did not examine the officer who delivered possession of the case land and since he did not produce and prove the writ of delivery of possession hence the plea of possession on the basis of the patta granted by the Tahsildar is not acceptable. Accordingly, he set aside the order of the learned SDM. It is wrong to note that while passing the aforesaid judgment learned Addl. Sessions Judge did not record a finding as to who was in possession of the case land on the date of preliminary order.