JHATU DELEI Vs. BAISHNABA CHARAN BISWAL

JUDGEMENT

(1.) This revision is, directed against the final order u/S. 145(6)(a) of the Criminal P.C. 1973 (for short 'the Code') declaring the possession of the first party (opposite party herein) over the disputed land measuring an area of 8 Kadis x 66 Kadis lying on the eastern side of Hal Plot No. 2697 under Khatian No. 242 of Ambasala, a village under Balikuda Police Station in the, district of Cuttack.

(2.) Basu Delei and Lokenath Delei, who are dead, were two second cousins. Padmabati is the widow of Basu, whereas Bhatu (petitioner-second party) is the son of Lokanath. Both the aforesaid brothers had 23 decimals of Gharabari land in plot No. 2422 of Khatian No. 101 in the aforesaid village and they had been jointly recorded in the Sabik settlement record-of-rights of the year 1931. In an amicable partition between them, each got 11 1/2 decimals of Gharabari land and they possess their respective shares separately. After their death, Padmabati, as widow, succeeded to the share of her husband, whereas Jhatu, as son, succeeded to the share of his father. Padmabati sold out of her share Ac.8.04.7 1/2 Kadis of land to Kalamani and Ac.0.84.2 1/2 Kadis to Kambhu, whereas Jhatu sold Ac.0.82.7 1/2 Kadia to Kulamani and only 7 1/2 Kadis to Banchanidhi. Jhatu having, thus, sold 3 1/2 decimals of Gharabari land, his remaining 8 decimals of land came to be recorded in the Hal Settlement jointly in his name as well as in the name of one Surjyamoni Bewa in Plot No. 2697 and Padmabati having sold 9 decimals of land, her remaining 2 1/2 decimals should have been recorded in her name in the Hal settlement but the record-of-rights of the Hal settlement indicates that Ac.0.01 decimal in Plot No. 2696 has been recorded in her name, besides 2 decimals in Plot No. 2698. So that as it may, by registered sale deed dt. 9-5-1978, the opposite party Baishnaba Charan Biswal and his brother purchased from Padmabati Ac. 0.02.5 Kadis of Gharabari land (66 Kadis in length and 38 Kadis in width) from Sabik Plot No. 2422 with a house standing thereon. These facts are not in dispute.

(3.) It was the case of the opposite party-first party in the Court below that after his purchase he possessed the land with the house standing thereon for dwelling purpose for about 5 years until the same collapsed. On 2-3-1983 when he stocked building materials on his purchased land for construction of a new house, the petitioner-second party created disturbance for which he filed the application u/ S. 145 of the Code before the Executive Magistrate describing the disputed land as Khata Ac. 101, Plot No. 2422, Ac.0.02.5 Kadis. A copy of that application was sent to the Officer-in-charge of Balikuda Police Station for the purpose of inquiry and after completion of inquiry the police submitted a report to the effect that since 1/2 decimal of land purchased by the first party had been wrongly included in plot No. 2697 of the Hal settlement belonging to Jhatu Dalei (second party), the latter was creating disturbance in the possession of the first party. He has described the disputed land to be 6 Kadis x 66 Kadis from eastern side out of Ac.0.08 decimals in.Hal Plot No. 2697 bounded by the land of Jhatu Dalai on the north and west, Baishnaba Charan Biswal on the east and 'Ganda' on the south. After receipt of the police report, the learned Executive Magistrate passed the preliminary order u/ S. 145(1) of the Code on 15-5-1983 describing the disputed land as stated in the police report. Both the parties filed written statements and adduced evidence claiming their physical possession over the disputed land by the date of the preliminary order. On a consideration, of the evidence led before him, the learned Executive Magistrate by order dt. 28-1-1987 declared the possession of the first party and, the same has been assailed in this revision.