DHOBAI SAHU Vs. KESHAB BAG

JUDGEMENT

(1.) MEMBERS of the second party in a proceeding under Section 145, Criminal Procedure Code are the petitioners. The learned Magistrate, after discussing the materials on record, came to the conclusion that the members of the second party were in possession of the property. The first party came up in revision to the Court of the Sessions Judge, Balangir. The learned Sessions Judge, without discussing the materials on record on merits, has remanded the case to the trial Court on the ground that it was the bounden duty of the Magistrate, to find out as to who was in possession of the disputed property on the date of the preliminary order. After going through the judgment of the learned Magistrate, I find that after considering the materials on record he has come to the conclusion that the members of the second party were all along in possession. If the spirit of the order passed by the learned Magistrate shows that the party in whose favour possession has been found was all along in possession, in absence of a particular finding as to who was in possession on the date of the preliminary order, the net result of discussions made by him which clearly shows that he accepted the contention of a particular party in whose favour he has found possession, would also amount to a finding of possession on the date of the preliminary order, even though the same has not been mentioned in the operative portion of the order. This position has been set at rest in Dilinga Mallik v. Trinath Mallik, 1972 (1) Cut WR 868 and Pravakar Adabaria v. Bishnu Adabaria, Criminal Revn. No.336 of 1975 disposed of on 8.4.1976 (Orissa). In view of the aforesaid position, the learned Sessions Judge should have come to the conclusion on merits about the question of possession as asserted by both sides. He has simply remanded the case only on the point that the Magistrate has not given a clear finding in the operative portion of the order as to which party was in possession on the date of the preliminary order. As has been decided by this Court in the cases stated above, the judgment of the learned Sessions Judge is not sustainable. The learned Sessions Judge should go into the merits of the case and claims of the parties and should consider the documents and affidavits produced by both sides and find out whether the conclusion reached by the Magistrate is to be upheld or not. When the learned Sessions Judge has not discussed the materials on record on merits, I think it is necessary that the case should be remanded to him to consider the case on merits.

(2.) IN the result, the revision is allowed. The decision of the learned Sessions Judge is set aside and the case is remanded to the Court of the Sessions Judge for disposal according to law, keeping in view the observations made above. Revision allowed.