SATYABAN MEHER Vs. STATE OF ORISSA AND ANR.

JUDGEMENT

(1.) THE judgment and order passed by the learned Additional Sessions Judge, Sonepur in Criminal Revision No. 69/29 of 1999 remanding the matter back to the Executive Magistrate, Ramapur for reconsideration in a proceeding under Section 147 of the Code of Criminal Procedure is the subject -matter of challenge before this Court.

(2.) THE present Petitioner filed a petition under Section 147 Criminal Procedure Code before the Executive Magistrate, Rampur which was registered as Criminal Misc. Case No. 37 of 1998. Case of the Petitioner is that one Ghasi Meher since deceased was the recorded tenant in respect of holding plot No. 153 and 654/456 (1007), 457 (1008) and 465 (1029) in village Digsira. He is possessing the said land since his fore -fathers. The Petitioner is the son of said Ghasi Meher and after death of his father he is in possession thereon. It is further alleged that there a natural water course going through the Petitioner's land as well as opposite party No. 2 and the opposite party No. 2 had purchased a piece of it from one Mahabir Prasad Agrawal. The opposite party No. 2 obstructed the water flow in Khata No. 541 of final consolidation R.O.R. in plot No. 2125 and 2409, as a result of which water gathering in the land of the Petitioner, could not flow resulting in damage of the crops. It was also not possible on the part of the Petitioner to cultivate lands because of stagnation of water. It is further alleged that the opposite party No. 2 was creating disturbance in agricultural operation by blocking water flow in it's natural course which resulted in serious apprehension of breach of peace between the parties. A prayer was therefore made to prevent the opposite party No. 2 from blocking water passage.

(3.) SHRI . Dhal, Learned Counsel appearing for the Petitioner submitted that the finding of the learned Additional Sessions Judge that there is no material on record to show that the lands possessed by the Petitioner is at a higher level than that of opposite party No. 2, is based on no material and there is evidence available on record to show that the lands in possession of the Petitioner is at a higher level than that of the opposite party No. 2 and there was a 'Nala' existing on the lands in possession of both the parties for passage of water to low lands of the village. Such finding is an error of record according to Sri Dhal, Learned Counsel for the opposite party No. 2, on the other hand, submitted that this being a second revision, there is no scope of appreciating evidence and unless there is absolute illegality in the order passed by the revisional court, this Court may not interfere in the impugned order.