BISHNU CHARAN NAIK Vs. HARIHAR SABU

JUDGEMENT

(1.) THIS revision is directed against the order dated 9 -7 -1981 by the Sessions Judge, Ganjam -Boudh, Berhampur in Criminal Revision No. 8 of 1980 -81 and setting aside the order of the Executive Magistrate, Boudh in a proceeding under Section 145 Criminal Procedure Code.

(2.) ON a petition filed by the petitioner, Criminal Misc. Case No. 40/78 was instituted under Section 144 Criminal Procedure Code wherein, the preliminary order restraining the opposite parties from entering upon the land in question was passed on 18 -7 -1978. After hearing the objection filed by Narayan Sahu one of the members of the 2nd party -opposite party No. 4 in this revision petition, the proceeding was converted to one under Setcion 145 Criminal Procedure Code. The disputed land is 0.62 cents in plot No. 374 under holding No. 91 in village Godubhelipadar. For the very same land another proceeding bearing No. 121 of 1979 under Section 145 Criminal Procedure Code was instituted between the same parties on a Police report. Both the proceedings were taken -up together and were disposed of by a common order by the learned Magistrate.

(3.) I do not find any infirmity in the order of the learned Sessions Judge so as to call for interference by this Court in revisional Jurisdiction. The position that emerge from the materials on record is that the case land was recorded in the name of Gobinda Sahu who had four sons. There is no material to indicate that there has been any partition of the properties amongst the sons of Gobinda Sahu. Hence, the property is joint family property of all the sons of Gobinda. It is the case of the petitioner that prior to the sale in his favour, the disputed land was mortgaged by Brundaban and Durjyadhan together on 5 -3 -1974 in favour of Nityananda which shows that Durjyadhan was not in exclusive possession of the disputed land. There is again no material to show that this mortgage has been redeemed and possession redelivered to Durjyadhan, The opposite parties have obtained a rent receipt dated 28 -2 -1978 which is indicative of joint possession by members of the family and goes against the claim of exclusive possession by Durjyadhan Sahu, the vendor of the petitioner, To add to this, the petitioner in his statement recorded on 18 -1 -1980 states that during last Asadha delivery of possession of the disputed land was given to him which goes to show that he could not have been in possession of the same on 18 -7 -1978 when the preliminary order was passed. In view of these materials, the court below was right in his conclusion that none of the parties to the proceeding was in possession of the disputed land on the date of preliminary order and the proceeding under Section 145 Criminal Procedure Code could not be initiated in a case where the property is joint family property and the parties are in joint possession.