RABINDRANATH SAHU Vs. DAYANIDHI SAHU

JUDGEMENT

(1.) First party in a proceeding u/ S. 145, Cr. P.C. is in revision against order dated 25/09/1987 passed by the Executive Magistrate, Nayagarh, accepting the submission of the second party and dropping the proceeding midway, as not maintainable.

(2.) The case land measures 9 decimals which admittedly belonged to Bharat Sahu. Claiming to have entered into possession of the same by virtue of purchase under a registered sale deed dated 3/07/1985, the second party initiated a proceeding u/ S. 144, Cr. P.C. against the first party which was decided in favour of the former on 21/12/1985 making the restraint order against the latter absolute. Thereafter on 30/05/1986 the first party initiated the impugned proceeding u/ S. 145 of the Code against the second party concerning the above land. After being satisfied that there was apprehension of breach of peace concerning the disputed land, the learned Executive Magistrate noticed both the parties to appear on 1/07/1986 and to put in written statements of their respective claims. Thereafter the second party filed his written statement on 27/11/1986. On 30/07/1987, the case was posted to 10/08/1987 for argument on the point of maintainability and the same was ultimately heard on 14/08/1987 and by the impugned order dated 26/09/1987 the proceeding has been dropped with the following observations - In the 144 proceeding which proceeded the present u/ S. 145 proceeding the possession of the present 2nd party was established by the Judgment of the Hon'ble Executive Magistrate on 21-12-85 .......... The judgment given by the Executive Magistrate Nayagarh earlier u/ S. 144 proceeding was complete in all respect and there is no scope left again to analyse the fact of possession in respect of the same land schedule. xx xx xx xx xx xx xx

(3.) The impugned order is attached on the following three grounds; The learned Magistrate should not have been influenced by the finding regarding possession recorded in the proceeding under S. 144, Cr. P.C. He should have afforded opportunity to the parties to produce evidence in the matter of possession of the disputed land. Lastly, in the facts of the case, he should not have dropped the proceeding midway without holding an enquiry as regards possession of the disputed land.