UPENDRANATH DAS Vs. RUKMINI PATNAIKANI

JUDGEMENT

(1.) THIS revision is directed against an order under Section 144, Code of Criminal Procedure passed by the Subdivisional Magistrate, Sonepur.

(2.) THE disputed land was previously a Bhogra land situate in village Lachhipur in the district of Bolangir. The father of the present Petitioner was the Gountia of the said village and claimed to have enjoyed the land. He died some time in 1942 and after him the present Petitioner succeeded the office of the Gountia and the Bhogra lands continued to remain in his possession. On 20 -6 -1946 the Petitioner leased out the land to Banshidhar Patnaik, the husband of the opposite party for a period of eight years. The case of the Petitioner is that even before the expiry of the lease period, the opposite party gave up possession of the land sometime in December 195,2 after harvesting the crop of that year. By a notification of the Government the Gountiani tenure was abolished on 1 -4 -1956 declaring that those who were in possession on 1 -7 -1955 will be entitled to be settled with as raiyats in respect of the said lands. After some enquiry by the Collector of Bolangir, the disputed land was settled with the opposite party as she was found in possession on 1 -7 -1955. As against that settlement by the Collector, the Petitioner preferred an appeal before the Revenue Divisional Commissioner but the same was dismissed and in the final record of rights of 1963 the opposite party was recorded as the tenant -in - possession.

(3.) THE main contention of Mr. Panda, learned Counsel for the Petitioner, is that when a bona fide dispute regarding possession of land exists between parties it is incumbent on the Magistrate to institute a proceeding under Section 145, Code of Criminal Procedure and conclusively decide the question as to who 18 in possession of the disputed land. It however appears from the order of the Magistrate that he took into consideration the fact of execution of the lease -deed and also the fact that the settlement operations took place after expiry of the period of lease and that the possession was recorded in favour of the opposite party and that the Petitioner who carried an appeal to the Revenue Commissioner was unsuccessful in getting his name recorded in the record -of -rights. On the basis of this material, the learned Magistrate was not inclined to draw up a proceeding under Section 145. In other words, he was not satisfied that a bona fide dispute regarding possession existed between the parties.