KIRTAN JENA Vs. BISWANATH SWAIN

JUDGEMENT

(1.) The petitioner, a member of the second party in a proceeding under Section 145, Criminal Procedure Code, seeks to challenge the revisional order of the Sessions Judge, Ganjam -Boudh, Berhampur, directing the proceeding under Section 145, Cr. P. C, to continue in spite of the petitioner having been declared as the tenant in. respect of the disputed property under the Orissa Land Reforms Act.

(2.) A proceeding under Section 144, Cr.P.C. (M. C. No. 19/76) was initiated on the petition filed by the opposite party No. 1 before the Executive Magistrate, Aska. In the said proceeding, Bira Jena, father of the petitioner was impleaded as the second party. The disputed property was described as 4,55 cents in Survey No. 290 under Patta No. 532 of village Govindapur. Subsequently, opposite party No 2 claiming to be the landlord in respect of the disputed property was impleaded in the proceeding on his own application. By order dated 17.12.1976 the learned Magistrate being satisfied about the existence of a dispute concerning the case land and the paddy crop thereon which was likely to result in breach of the peace converted the proceedings under Section 144, Cr. P. C, to one under Section 145, Cr. P. C By the same order the learned Magistrate in exercise of his power under Section 145(8), Cr.P.C., appointed the Revenue Inspector of Narendrapur to be the custodian of the crop standing on the disputed land and directed him to put the standing crop in public auction. Subsequently, by order, dated 4. 5. 1977, he permitted the present petitioner to be impleaded in place of his father Bira Jena who expired during the pendency of the proceeding. But by order, dated 1. 6. 1977 he recalled the permission to implead the present petitioner in place of Bira Jena on the objection of opposite party No. 1. On 12.7.1977, to which date the case was posted for hearing, some documents were filed by the third party who prayed to declare possession of the deities, Sri Laxrninarayana Mohaprabhu represented by Mahanta Sri Gobardhan Das Babaji in respect of the case land. By order, dated 15.7.1977 on a consideration of the case of the respective parties the Court observed that the real dispute hinges round tenancy in respect of the disputed land and could not satisfy himself as to whether the first party or the second party or the third party was in possession of the disputed land on the date of the preliminary order. He further observed that the Criminal Court was not the forum for determination of the right of tenancy. He directed the parties to approach the competent Court for determination of their rights. Accordingly, he converted the proceeding to one under Section 146, Cr. P. C, and attached the disputed land until a competent Court determines the rights of the parties. By the same order he appointed the Revenue Inspector, Narendrapur, as receiver in respect of the attached lands. After several dates on which the case was posted for different purposes, with which we are not concerned in this proceeding, on 26.4. 1980 the counsel for the second party (petitioner) filed a petition to release the 'and under attachment and also the amount in deposit in favour of his client in view of the order passed by appellate Court in the O.L.R. case accepting the claim of tenancy of the second party. He filed certified copies of the judgment in the O.L.R. appeal. The learned Magistrate posted the case to 13.5.1980 for hearing on this matter. On 13.5.1980 on the prayer of opposite party No. 1 for an adjournment in order to enable him to obtain the order of stay from the Revenue Divisional Commissioner (Southern Division) before whom he had filed O.L.R. Revision Case No. 75/80 challenging the appellate order, the case was adjourned to 20. 5. 1980. On 20th of May, 1980 the counsel for the first party (opposite party No. 1) failed to produce any order staying the operation of the order of the appellate Court confirming that of the Revenue Officer, Aska. The learned Magistrate took note of the orders in the O.L.R. proceeding in favour of Kirtars Jena S/o. Bira Jena (the petitioner) as a tenant tinder the Mahanta Gobardhana Das Marfat Laxminarayana Mohaprabhu Biie Saragada and observed that the second party member waa eligible to receive the possession of the disputed land until evicted therefrom in due process of law. He, therefore, vacated the order dated 15. 7. 1977 attaching tha disputed land under Section 146(2)., Cr. P. C, and directed that possession of the land be delivered to the second party member by the receiver at once. By subsequent urder, dated 12.6.1980 on a report of the Rule 1. that Bira Jena was dead and his son Kirtan Jena is the legal heir and also on the petition filed on behalf of Kirtan Jena for being impleaded in place of his deceased father, the learned Magistrate directed that the possession of the disputed land be delivered to Kirtan Jena. Against the aforesaid directions of the learned Magistrate, opposits party No. 1 filed Criminal Revision No. 43 of 1980 in the Court of the Sessions Judge, Ganjam -Boudh. The learned Sessions Judge by his impugned order not only vacated the order of the learned Magistrate directing possession of the disputed land to be delivered to the second party (petitioner) but be further directed that the proceeding under Section 145, Cr.P.C., in respect of the disputed land shall be deemed to be pending and the learned Magistrate is to held an enquiry into the physical possession of the parties over the disputed land by giving opportunity to them to adduce oral evidence in support of their respective pleas and thereafter to pass necessary orders. The learned Sessions Judge took the view that on passing an order of attachment under Section 146(1), Cr.P.C. tha proceeding under Section 145, Cr. P. C, does not come to an end automatically and hence the Magistrate should have continued the proceeding in spite of the order of attachment notwithstanding the fact that the Revenue Court declared the second party to be the tenant in respect of the disputed land under the Orissa Land Reforms Act.

(3.) THE factual position is not in controversy that on the application filed by the opposite party No. 1 under Section 15 of the Orissa Land Reforms Act the Revenue Authorities have come to the decision that the petitioner is the tenant under the deity Laxminarayana Mohaprabhu, Marfat Mahanta Gobardhana Das and have negatived the claim of tenancy of the opposite party No. 1, It is also not in controversy that though a revision case has been filed challenging the order of the appellate authority confirming that of the Revenue Officer, no order of stay has been obtained from the revisional authority. The position of law is well settled that it is the duty of the Criminal Court to respect recent decision of the Civil Court or the Revenue Court whichever is the appropriate forum in the matter, regarding possession. If after such declaration any apprehension of the breach of peace arises, steps should be taken to bind down the parties who have lost before the competent forum and there should be no fresh enquiry into the question of possession by initiating a proceeding under Section 145, Cr.P.C A declaration of tenancy in favour of a party under Section 15 of the O.L.R. Act presupposes the possession by the said party and there is no question of delivery of possession in such a case. This is the view taken by this Court in the case of Baishnab Parida and Ors. v. Subal Bhoi and Ors., 45 (1978) C.L.T. 297. It is pertinent to mention here that under Section 67 of the O.L.R. Act, jurisdiction of the Civil Court in respect of the matter dealt with under the Act has been barred. In view of the settled position of law there is no escape from the conclusion that in the facts and circumstances of this case continuance of the proceeding under Section 145, Cr.P.C., is inappropriate. Hence, the direction of the learned Magistrate to this effect cannot be sustained.