SURU MALI Vs. PITABASH MAJHI

JUDGEMENT

(1.) The Second Party being the petitioner in a proceeding under Section 145 of the Code of Criminal Procedure has assailed the order dated 11.08.2004 passed by the learned Addl. Sessions Judge, Nabarangpur in Cr.R.P. No. 127 of 2000 confirming the order dated 29.12.1999 passed by the learned Executive Magistrate, Nabarangpur in Misc. Case No. 505 of 1996.

(2.) The present opposite parties, being the legal heirs of the original first party Daimati Mali initiated a proceeding under Section 145 of the Cr.P.C. before the learned Executive Magistrate, Nabarangpur stating that Madhusudan Mali the father of the original first party, Daimati Mali was the original owner in possession of the disputed land and after him, she was in possession. It is further stated that Madhusudan had no son and therefore the second party members had created disturbance. The petitioner being the second party stated that Mukunda, the father of Madhusudan was the original owner in possession of the disputed land and that the second party members are in cultivating possession of the same for about 15 to 16 years prior to the initiation of the proceeding under Section 145 of the Cr.P.C. and that they had perfected their right over case land by adverse possession. It is further stated that the second party members having remained in exclusive possession of the case land and paddy from their exclusive possession has been attached. It is an admitted fact that second party is the grandson of Mukunda being the son's son. The first party is the grand daughter of Mukunda being son's daughter.

(3.) In Misc. Case No. 142 of 1987 which was initiated before the Executive Magistrate, the possession of the second party was declared vide proceeding dated 18.07.1992, which was pronounced on 05.09.1992. However, the matter was remitted back to the Executive Magistrate by the learned Addl. Sessions Judge, Jeypore on 12.1.1996. As per the order of the Revisional Court, opportunity was given to the parties to adduce evidence. After such evidence being adduced, the Executive Magistrate declared possession in favour of the first party. The case was registered as Misc. Case No. 5 of 1996. Against said order of the learned Executive Magistrate the second party filed revision before the learned Addl. Session Judge, Nabarangpur, which was registered as Cr. R.P. No. 127 of 2000 with a prayer to set aside the order of the Executive Magistrate.