SATYA @ SATYANANDA MAHAKUR Vs. RAGHU MAHAKUR AND ORS.

JUDGEMENT

(1.) A Petitioner under Section 145, Code of Criminal Procedure was filed by the Petitioner (first party) before the Executive Magistrate alleging breach of peace in respect of 5 decimals in plot No 555, 17 decimals in plot No. 97, 22 decimals in plot No. 101, 35 decimals in plot No. 464 and 20 decimals of land in plot No. 613 of M.S. khata No. 48 of village Papanga in Sambalpur district. The petition discloses that there are five members of the second party who are opposite parties in this case including Sankar Mahakur. In the preliminary order drawn up on 17 -11 -1984 the name of Sankar Mahakur does not appear. Copy of the preliminary order was served on all the members of the second party except Sankar Mahakur. The record of the case reveals that he did not enter appearance in the case obviously because he was neither served with a copy of the preliminary order nor any notice. In the impugned order, however, he has been shown as second party No. 5.

(2.) IN this proceeding while the Petitioner claims possession in respect of the subject of dispute on the date of the preliminary order, opposite party No. 1 by filing his own written statement has claimed possession in respect of plot Nos. 101, 464 and 613. The case came up to the stage of hearing, but the first party did not produce his witnesses and so there was no full -fledged hearing of the case. On behalf of opposite party No. 1, the Executive Magistrate was pressed to take up the possession of the above mentioned three plots specifically claimed by him. So without recording any oral evidence, but on the basis of documentary evidence and arguments advanced before him, the Executive Magistrate by the impugned order declared possession of opposite party No. 1 in respect of those three plots and further directed that the case shall proceed in respect of the balance two plots. This order has been challenged in this Court mainly on the ground that there should not have been a piecemeal hearing of the proceeding under Section 145, Code of Criminal Procedure.

(3.) WITH regard to the piecemeal bearing of the proceeding under Section 145, Code of Criminal Procedure, no direct decision of any of the Courts was cited by the learned Counsel for the parties, but a decision reported in : : A.I.R. 1980 S.C. 242, Mathuralal v. Bhanwarlal and Anr. was cited by Mr. J.P. Misra in which it was held: