TARESWAR NAIK Vs. SATYABADI LENKA

JUDGEMENT

(1.) The present petitioners are the First Party members in a 144 proceeding initiated by them in the Court of the Executive Magistrate, Bhanjanagar numbered as Misc. Case No. 390/84 and by order dated 30 -10 -1984 the Court prohibited both the parties to come over the disputed land. The land in dispute consists of a portion of the Survey No. 69(1) measuring Ac. 0.60 cents out of a total area of Ac 2.04 cents. As is revealed from the order of the Executive Magistrate, the claim of the First Party was that the land originally belonged to the Kotha of village Netanga consisting of one Agadhu Khandual and other 21 persons and in the year 1929 the Kothadars orally gifted the land to the village deity Sri Sri Gopinath Swamy. Since then the disputed land is under peaceful possession of the deity Sri Gopinatth Swamy and is shown in the property register of the deity. The First Party No. 1 being the Managing Trustee of the deity had leased out the land in public auction along with other landed properties of the deity and the First Party No. 2 Hari Lenka being highest bidder took the disputed land on lease for two years and was cultivating the same and raised 'Jagannath' variety of paddy in the years of dispute. Since the second party members created disturbance and threatened to cut away the paddy raised by First Party No. 2, the land was attached Under Section 145 Cr.P.C. in the year 1984 and thereafter the disputed land was being leased out on public auction by the Revenue Inspector of Netang who was appointed the receiver after attachment of the land. The case of the second party members was that the First Party members had no title to the land and they were never in possession of the same. The land was throughout in possession of the second party members being the members of Kotha.

(2.) EVIDENCE was led by both the parties before the Executive Magistrate and the First Party examined four witnesses whereas the Second Party examined five witnesses in support of their possession over the case land. The First Party had also filed several documents in support of his possession over the land in question.

(3.) IN the present revision by the 1st Party, it is urged that since the Executive Magistrate ,had held that the 1st Party was in actual physical possession on the date of the preliminary order, and even two months prior to that the First Party's possession is declared, with effect from 14 10 -1984 and as such the First Party is declared to be in actual physical possession of the land on 30 -10. -1984. Therefore, it would serve no purpose if the case is remitted back to the Executive Magistrate for fresh determination as to whether any party was, in possession of the land on 30 -10 -1984. The contention raised by the petitioner of this revision is not without any substance.