ADHIKANDA BEHERA Vs. DHANESWAR SWAIN

JUDGEMENT

(1.) SECOND Party Nos.1 and 2 in a proceeding under Section 145, Criminal Procedure Code are the petitioners. The dispute relates to 0.30 acres of land appertaining to plots 882/1489, 880, 876, 882, 882/1520, 883 and 881 in village Pariapatpur, P.S. Balianta, District Puri. The learned Magistrate has found possession in favour of the first party. The judgment does not contain the cases of the respective parties. The proceeding was started on a police report.

(2.) THE case of the first party is that the members of the second party have no title or possession over the disputed land. They are Bhois by caste and have a strong combination under some influential persons of the village. The suit land belonged to one Iswar Mallik. Hadi Bewa was his wife and Kanchan Dei was his daughter. Iswar was in possession of the disputed land. He died in 1866 leaving Hadi and Kanchan as his heirs. His widow Hadi remained in possession of the land for herself and on behalf of Kanchan. After a few months of the death of Iswar, Hadi remarried one Kshetra Mallik and the daughter Kanchan remained under the care and custody of Hadi and Kshetra. The suit land was in possession of Hadi and Kshetra and Kshetra sold this property to the first party on 6.1.1972. After purchase, the first party remained in possession and raised sugarcane etc. on the suit land. The second party Nos.1 and 2 got a fraudulent and benami document executed by one Gopi Mallik on 14.3.1973 who was a stranger and lived at a distance of ten miles and had no title or possession over the suit land. The second party members created disturbance in the possession of the first party.

(3.) THE learned Magistrate has relied much on the decision in a civil suit between the parties. The judgment in O.S. No.59 of 1973 (1) of the Court of the Munsif, Bhubaneswar has been filed. After going through the judgment, I find that no finding as to possession has been given by the Civil Court and the Court has held that the sale deed in favour of the first party was invalid and the suit was not maintainable. No finding was given as to the fact which of the parties was in possession of the property. The learned Magistrate has held that the spirit of the judgment shows that the Civil Court has held possession of the first party. This finding is wrong and against the materials on record.