NAKULA BARIK Vs. SESADEV BHOE AND ANOTHER

JUDGEMENT

(1.) Petitioner calls in question legality of the order passed by the learned Sessions Judge, Balangir declaring possession of opposite parties over the disputed land on the date of preliminary order passed under Sec. 145 of the Code of Criminal Procedure, 1973 (in short, the 'Code') upsetting order of Executive Magistrate, Balangir whereby possession of present petitioner was declared.

(2.) The background facts are as follows:

(3.) Mr. S. Pujari, learned counsel for petitioner. submitted that the conclusion of the learned Sessions Judge is erroneous, as the basis he has adopted to find possession on the date of passing of the preliminary order is clearly contrary to the factual position. Additionally it is submitted that the documentary evidence has been taken note of, while keeping out of consideration oral evidence. Oral evidence was not necessary to be led as observed by this Court in Gopa Behera Vs. Fakir Hoban Behera (1987) 64 CLT 647. The learned Sessions Judge was, therefore, not justified in upsetting the conclusion of the Executive Magistrate, and deciding the question of possession in favour of the opposite parties. Mr. S. Rath, learned counsel for opposite parties on the other hand submitted that even if the conclusion of the learned Sessions Judge regarding possession is without basis and erroneous, yet in view of the factual position as borne out from the record, it cannot be held that the petitioner was in actual physical possession. As regards appreciation of evidence, it is submitted that the revisional Court is not to stand a mute witness to miscarriage of justice, and when conclusions by the original Court are erroneous and not in accordance with law, interference can be made by that Court.