ANNAPURNA DAS Vs. BINAYAK BIRO

JUDGEMENT

(1.) How proceedings are conducted in lower courts in a cavalier fashion is best illustrated by these three criminal revisions arising out of a common order passed by the learned Executive Magistrate of Parlakhemundi which were heard analogously and shall be governed by this judgment.

(2.) The land in dispute, with an area of about one acre situate in village Nuagada, is the subject-matter of a proceeding under S.145 of the Code of Criminal Procedure ('code' for short). On a police report to the effect that there was apprehension of breach of peace relating to the possession of the disputed land between the petitioner a widow and the opposite parties being members of the second party, a preliminary order was drawn up on 30-7-1977 and the disputing parties were called upon to file their statements. Both the parties in their statements claimed possession in respect thereof. After a protracted proceeding lasting up to the month of June of the year 1982, when perhaps the petitioner had lost interest so also her counsel, the case was taken up for hearing, some evidence on behalf of the second party (opposite parties 1, 2 and 3) was recorded and without making a real effort to impart justice, the learned Executive Magistrate made a short-cut approach and declared the possession of opposite parties 1, 2 and 3 in respect of the disputed land.

(3.) Learned advocate appearing for the petitioner contended that the civil court had decreed a suit for permanent injunction against opposite parties 1 and 4 restraining them from entering upon the disputed land. The learned Executive Magistrate ought to have respected the civil court decree so as to declare that the petitioner was in possession thereof. In support of his contention he produced the certified copy of the decree passed in T.S. No. 49 of 1975 by Munsif, Parlakhemundi and also the certified copies of the interim orders of injunction made in the suit. Mr. S.P. Mishra, learned counsel appearing for opposite parties 1, 2 and 3 did not dispute the orders and the decree, but contended that there was apprehension of breach of peace on the date of the preliminary order and so there was justification not only for initiating the proceeding under S. 145 of the Code, but also for declaration of the possession of the opposite parties 1, 2 and 3 on the basis of materials placed on record.