GUDABARTI ADINARAYAN Vs. NETRI PADHAN AND ORS.

JUDGEMENT

(1.) THE first party in a proceeding under Section 145 of the Code of Criminal Procedure is the Petitioner before this Court assailing the final order made by the Executive Magistrate at Bargarh against him.

(2.) THE proceeding was initiated by a preliminary order dated 17 -5 -1972 before the new Code of Criminal Procedure came into force and has therefore, been disposed of on the basis of affidavits and documents as provided under the old Code. The disputed property is 1.92 acres of land pertaining to Hamid Settlement Khunti No. 31 of village Tajutikra. The first party claimed that though originally the property belonged to a family of four brothers namely Jayakrishna, Premasagar, Sriram Padhan and Surajmani the disputed property had come to the hands of Surajmam who on 15.6.1971 had leased out the same in favour of the first party for one year. On 5.1.1972 the lease was extended for a period of five years and on 17.2.1972, Surajmani sold the property to the first party. Even since the lease, the first party maintained that he came to possession. The heirs of Premasagar are the members of the second party. They denied the lease and claimed under a deed of April, 1972 and maintained that they had been in possession of the property ever since.

(3.) RELIANCE was placed by Mr. Sahoo for the Petitioner on a Full Bench decision of the Patna High Court in the case of Smt. Radha Devi v. Mani Prasad Singh and Anr. : : A.I.R. 1980 Pat. 41 in support of his contention that the proceeding having taken under the old Code by the Sob -Divisional Magistrate (Executive), it could not have been disposed of by the Executive Magistrate set up under the new Code; and it was obligatory for the same Magistrate before whom it was pending when the new Code came in to dispose of the proceeding. It is a fact that the Full Bench observed to that effect by saying: