DHANESWER SINGH Vs. BANDIA SINGH

JUDGEMENT

(1.) THIS is a revision against an order under Section 145 Code of Criminal Procedure passed by a First Class Magistrate of Kamakhyanagar declaring the first party (opposite party) to be entitled to possession of the disputed property until eviction in due course of law.

(2.) THE disputed property which consists of 13.42 acres in mouza Budhibil and 18.31 acres in mouza Karagola in Kamakhyanagar sub -division is the subject matter of a title suit (Title Suit No. 24 of 1956) pending in the court of the Subordinate Judge, Dhenkanal between Kapila Sahu and others on one side and Purna Chandra Sahu and others on the other. After the passing of the preliminary decree in that suit Petitioner Dhaneswar Singh was appointed by the court as receiver on 1 -12 -1959 and directed to take possession of the property. When the receiver went to take actual possession and to harvest the crops, he found that the first party Bandia Singh had taken away most of the bundles of paddy saying that he bad grown the crops as Bhagchasi of Purna Chandra Sahu and others. After some miscellaneous orders Bandia Singh himself filed apparition before the learned Subordinate Judge on 3 -9 -1960 saying that he was the Bhagchasi of the land under Purna Chandra Sahu and others for the last 25 years and that his possession might not be disturbed. The learned Subordinate Judge by his order dated 24 -9 -1960 however rejected this petition holding that the receiver obtained actual possession of the land and that Bandia Singh was dispossessed. He however directed Bandia Singh to file a suit for recovery of his title in an appropriate court after impleading the receiver as a party. He thought that in a summary proceeding it was not possible for him to decide whether Bandia Singh was a Bhagchasi and what his status was in respect of the disputed land. Bandia Singh did not challenge this order of the learned Subordinate Judge by way of revision in the High Court. Subsequently however he filed a petition under Section 145 Code of Criminal Procedure against the receiver and other persons on 18 -11 -1960. Admittedly the consent of the learned Subordinate Judge was not taken to implead the receiver as a party in that proceeding under Section 145 Criminal Procedure Code. The learned Magistrate on 20 -12 -1960 dropped the proceeding under Section 145 Code of Criminal Procedure. But when a revision was taken to the High Court (Criminal Revision No. 33 of 1961), a Single Judge of this Court held that the proceeding should not have been dropped and should have been continued and disposed of in accordance with law. The learned Magistrate therefore thought that by virtue of this order of the High Court he should continue the proceeding under Section 145 Code of Criminal Procedure and after examining the affidavits filed by both sides he disagreed with the finding of the learned Subordinate Judge and held that Bandia Singh was in actual possession. Hence h declared .possession in his favour.

(3.) AS is well known, a proceeding under Section 145 Code of Criminal Procedure is of a summary nature intended to maintain peace till the title of the respective claimants is adjudged by a competent court. Here when the competent court, namely, the Subordinate Judge is already in seisin of the entitle dispute and has also placed the receiver in actual possession of the property , the proceeding under Section 145 Code of Criminal Procedure was not at all justified. If any body attempted to disturb the possession of the receiver and thereby committed a breach of peace, remedy should be sought for before the learned Subordinate Judge by way of contempt or other proceeding. The criminal court should not have passed final orders in the proceeding under Section 145 Code of Criminal Procedure when the same property had been placed with the receiver by a competent civil court. The learned Subordinate Judge himself granted permission to Bandia Singh to implead the receiver as a party for declaration of his title, and so long as the order of the Subordinate Judge dated 24 -9 -1960 is not reversed or modified by a superior court, Bandia Singh is bound by the same.