BRAJA SUNDAR BHUTIA Vs. LINGARAJ ROUTRAY

JUDGEMENT

(1.) THIS Criminal Misc. Case has been filed invoking inherent jurisdiction of this Court under Section 482 CrPC inter alia challenging the confirming order of the 2nd Addl. Sessions Judge, Bhubaneswar in Crl. Revision No.1/4 of 2000/1999.

(2.) THE petitioners as first party members had initiated the proceeding under Section 144 CrPC before the Sub -divisional Magistrate, Bhubaneswar, with a prayer to declare their possession in respect of the disputed property and to restrain the present opposite party (second party in the said Crl. Misc.Case) from creating any disturbance thereon which was registered as Crl. Misc. Case No. 586 of 1986. According to the petitioners the property in dispute was the exclusive property of one Srikantha Rao and that he had executed a Will on 22nd July, 1977 bequeathing the said entire property in favour of the petitioners and the petitioners and their family members had been staying in the house situated on the land in dispute. While matter stood thus, on 8th of July, 1986, the second party with the help of some Goondas uprooted the green fence from the disputed land and took over possession thereof. Though an FIR was lodged in that regard, as police did not take any action a proceeding under Section 144 CrPC was initiated before the SDM which was subsequently converted to one under Section 145 CrPC.

(3.) THE SDM by a reasoned order declared possession of the second party over the disputed property. Being aggrieved by that order the petitioners preferred Criminal Revision, which was numbered as Crl. Rev. No.1/4 of 2000/1999 before the 2nd Addl.Sessions Judge, Bhubaneswar.The stand taken before the revisional Court was that the second party in course of hearing without knowledge of the counsel for the first party had filed certain documents before the SDM and had taken return thereof after delivery of the orders. Thus there was no opportunity for the first party members to see the same and meet the contentions raised by the second party. It was further submitted that the said documents produced before the SDM by the second party were all forged ones and the SDM acted illegally and with material irregularity in relying upon the aid documents without affording opportunity to the petitioners to peruse the same. After receiving notice, the second party appeared before the revisional Court and filed all the documents he relied upon before the SJM. The revisional Court after perusing the order -sheets and on being satisfied that enough opportunity had not been given to the first party members, set aside the order of the SDM and remanded the case to the latter for fresh disposal. The documents filed in the revisional Court were also transmitted to the Court of the SDM. After such remand, the case was again taken up for hearing by the SDM and the first party -petitioners were afforded all opportunity to peruse the documents and make their submissions. The first party -petitioners took the stand that the order of the Probate Court had not attained finality as a petition had been filed by them to revoke the said order. It was further submitted that the documents filed by the second party were not genuine and could not be relied upon. The SDM relying upon the report of an Amin who had visited the spot, in connection with Objection Case No.9341/501, and other materials available besides the evidence, both oral and documentary, held that the second party was in possession of the disputed land on the date of the preliminary order and therefore directed that he should retain possession of the disputed land until otherwise evicted therefrom through proper course of law. Being aggrieved by the said order of the SDM, the petitioners once again approached the revisional Court by filing Cri.Rev. No.1/4 of 2000/1999. The said revision was heard by the 2nd Addl. Sessions Judge, Bhubaneswar who examined the evidence both oral and documentary in extenso and arrived at the conclusion that the SDM had not committed any irregularity or illegality and refused to interfere with the impugned order. The petitioners, circumventing the bar imposed under Section 397(3) CrPC, has filed the present CRMC invoking inherent jurisdiction of this Court under Section 482 CrPC.