KANDURI CHARAN SWAIN Vs. BIRABHADRA SWAIN

JUDGEMENT

(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.

(3.) DOUBTLESS if a proceeding under Section 144 Criminal Procedure Code 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 Criminal Procedure Code no party can take advantage of the final order that might have been passed in favour of either party in the proceeding under Section 145 Criminal Procedure Code and the relevant date for ascertaining the possession of either party will be the date on which the proceeding under Section 144, Criminal Procedure Code commenced. But here there was a gap of nearly 6 months between the termination of the proceeding under Section 144 Criminal Procedure Code and the commencement of the proceeding under Section 145 Criminal Procedure Code 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). Order accordingly.