PADMA CHARAN BEHERA Vs. PRAFULLA CHANDRA NAIK

JUDGEMENT

(1.) PETITIONERS along with Opposite Parties 11 and 12 are members of the second party in a proceeding under Section 145, Criminal procedure Code. Opposite Parties 1 to 10 are members of the first party. Disputed lands constitute 11.07 acres. The plot numbers in the Current Settlement (1930) with corresponding plot numbers in R.S. (1911) and running settlement (1965) are given hereunder : -

(2.) THE case of the members of the first party is as follows : The ancestors of the petitioners (hereinafter called as Beheras) were the owners of the disputed lands at the time of the Revision settlement. They mortgaged those lands along with other lands to the ancestors of the first party members (hereinafter called as Naiks). The mortgagors did not redeem the mortgage. The mortgagees got a mortgage decree. The decree was put into execution in Execution Case No. 107 of 1922 and the disputed properties along with other properties were purchased by the decree -holders on 26.5.1922. Delivery of possession through court under Ext. 10 was obtained on 24.1.1923. In Ext. 10 plot numbers were given according to the Revision Settlement. Though the Beheras were dispossessed through court they created disturbance in the possession of the Naiks as their names were recorded in the 1930 settlement papers. The Naiks filed Title Suit No. 57 of 1929 against the Beheras for declaration of title, confirmation of possession or in the alternative for recovery of possession and for permanent injunction. The suit related to the disputed lands and other lands. It was decreed on 28.8.1930. Ext. 8 is the judgement and Ext. 9 is the decree in that suit. The Subordinate Judge in that suit held that the Naiks had title and that possession had been delivered to them in Execution Case No. 107 of 1922 and they were continuing in possession of the properties. A permanent injunction was issued against the Beheras restraining them from interfering with the possession of the Naiks. The Naiks thereafter continued in possession and paid rent in evidence of which they filed rent receipts (Ext. 15 series and Ext. 20 series). In 1965, settlement operations started in the locality. The petitioners, the descendants of the Beheras, created disturbance in the peaceful possession of the first party members. On 20th of November, 1965 the first party members filed an application under Section 144 Criminal Procedure Code The disputed properties were referred to in the petition. The Beheras filed written statement showing cause. On 18.1.1966 the learned Magistrate converted the proceeding under Section 144, Criminal Procedure code to one under Section 145, Cri. Pro. Code in presence of both the parties and directed them to file their written statements, affidavits and documents in support of their respective cases. The leaned Magistrate did not, however, expressly state that a preliminary order was passed under Section 145, Criminal Procedure Code. The relevant portion of the order may be extracted :

(3.) THE point urged by Mr. Mohanty raises the following questions :