SITANATH MOHANTY Vs. SESI ALIAS DUNGAI BOWA

JUDGEMENT

(1.) The first party member in a proceeding under S. 145 of the Code of Criminal Procedure, 1973 (for short 'the Code') is the petitioner in this revision.

(2.) The disputed lands consist of plots Nos. 938, 939, 1224, 995, 806, 727 and 745 under old Khata No. 479/98 comprising a total area of A3.63 decimals in mouza Sripurusottampur which correspond to new plots Nos. 951, 952, 1021, 1038, 843, 419, 420 and 453 measuring a total area of A3.59 decimals. On 3-11-1982, the first party made an application under S. 144 of the Code before the Sub-Divisional Magistrate, Sadar, Puri with a prayer to restrain the members of the second party from going over the disputed lands which was forwarded to the Officer-in-charge of Delenga Police Station for inquiry and report. On the basis of the police report, the Sub-Divisional Magistrate initiated a proceeding u/S. 144 of the Code on 16-11-1982 prohibiting both the parties from entering upon the disputed lands for a period of two months. After receipt of notice, when both the parties appeared in court and filed their respective documents, the Sub-Divisional Magistrate converted the proceeding into one under S. 145 of the Code by his order dated 12-1-1983 and directed the parties to file their written statements. Each party claimed to be in possession of the disputed lands by the date of the preliminary order. Evidence adduced on behalf of both the sides was recorded and the parties filed documents in support of their respective title and possession. It appears that without discussing the oral and documentary evidence adduced by both the parties, the Executive Magistrate by order dated 19-11-1983 passed the following final order :

(3.) The above order which is assailed in this revision cannot be sustained for the solitary reason that the Executive Magistrate has declared the possession of one party without deciding as to which of the parties was in actual possession of the disputed lands. Section 145(4) of the Code prescribes that "the Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-Sec. (1), in possession of the subject of dispute." Sub-Sec. (6) thereof provides that "if the Magistrate decides that one of the parties was, or should under the proviso to Sub-Sec. (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such evidence." The word "decide" or "decides" respectively appearing in Sub-Secs. (4) and (6) of S. 145 has a special significance when the provision of Sub-Sec. (6) of S. 354 of the Code is read which provides that every order under S. 117 or Sub-Sec. (2) of S. 138 and i every final order made under S. 125, S. 145 or S. 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision." This means that every order under S. 145 of the Code shall not only contain the decision on the point or points for determination but also the reasons for the decision. Otherwise stated, while rendering a final order under S. 145 of the Code declaring possession of one party an Executive Magistrate has to give reasons in support of his finding as to the factum of possession by that party on the date of the preliminary order. In the instant case, I find that although evidence of two witnesses was recorded an the side of the first party and that of four witnesses on behalf of the second party and large number of documentary, evidence had been adduced, the Executive Magistrate has not discussed any of such evidence in support of his ultimate conclusion that the members of the second party were in possession of the disputed lands. All that he has done is that he has merely catalogued the entire evidence. Mere setting of evidence docs not mean discussion of those evidences, by discussion of evidence, an Executive Magistrate is required to weigh the evidence given by the parties and by such weighment, he has to point out as to why he has preferred the evidence of one side to the evidence of the other side. If this is not done, and a final conclusion is reached as to the possession of any of the parties, then such finding cannot be said to have been supported by reasons. Since his impugned order declaring the possession of the members of the second party is not supported by any reason, the same cannot be sustained in law.