DURIYODHAN JENA Vs. DHARAMU JENA

JUDGEMENT

(1.) THE unsuccessful first party member in a proceeding under Section 145, Criminal Procedure Code has filed this revision against the final order dated 11 -10 -71 passed by the Magistrate, First Class, Nayagarh.

(2.) THE first party's case in short is that he along with his sons and his brother, second party No. 6, were all along in possession of the disputed land till the date of its attachment. They grew gram and vegetables on the said land, but as the second party members interfered with their possession the first party approached the Court and this proceeding was started. According to the first party, the second party members, excepting second party No. 6, were never in possession of the disputed land.

(3.) MR . Das, the learned counsel for the petitioner, at the outset challenged the impugned judgment stating that the court having decided to refer the matter to the Civil Court on 20 -1 -71 became functus officio thereafter to deal with and decide the matter and so the impugned order is a nullity in law. The court's order dated 20 -1 -71 shows that on the materials still then before it the court was not in a position to decide as to which of the parties was in possession of the disputed land at the relevant time, and therefore it decided to refer the matter under Section 146, Criminal Procedure Code to the Munsif at Kendrapara. In accordance with that order a statement of facts was drawn up and the parties were directed to appear before the Munsif on 15 -2 -71. On 3 -2 -71, i.e., before the date on which the parties were expected to appear before the Munsif in connection with this matter and before the transmission of the case records to the Munsif's court, three persons filed a petition before the court below to implead them as parties in this Section 145 proceeding. Along with the said petition some affidavits also were filed in the court below. Copies of all these were served on the advocate of the first party.