NATABAR BARIK Vs. BASUDEV BARIK

JUDGEMENT

(1.) The first party member in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) is the petitioner. The possession of the first party over the disputed land was decided by the Magistrate. The Second party member No. 2. filed a Criminal Revision before the Sessions Judge, Cuttack, which has been allowed. Against the said reversing order of the revisional Court, the present revision has been filed.

(2.) THE second party members 1 and 2 are two brothers. The first party member claims that in a partition the disputed property had fallen to the share of second party member No. 1 and a registered deed of partition was executed. Thereafter the second party member No. 1 had constructed a house and was in possession. Subsequently the said property was purchased by the first party member by a registered document dated 17.1.1994 and possession was delivered on that date by second party member No. 1. However, on the very next day i.e. 18.1.1994, the second party member No. 2 created disturbance over the possession but on the intervention of punch members of the village the dispute was subsided. It is alleged that on 20.3.1994, taking advantage of the absence of the first party member, the second party member No. 2 forcibly occupied the disputed house. Accordingly, the first party member filed an application and preliminary order was passed by the Executive Magistrate initiating a proceeding under Section 145, Cr.P.C.

(3.) THE Executive Magistrate held that there was a partition in which the disputed property had fallen to the share of second party No. 1 and he had constructed a house over the disputed land and, thereafter, sold the property to the first party member. It was also found that the possession was taken by first party member on 17.1.1994 and though his possession was disturbed on 18.1.1994, he continued to be in possession until 20.2.1994, when he was forcibly dispossessed. In revision, the said finding has been reversed by the Sessions Judge who held that though the allegation of the first party that he continued in possession after 18.1.1994 and subsequently dispossessed has not been established. It has been found by the Sessions Judge that prior to sale, second party No. 2 was in possession of the property as the first party No. 1 was not staying there.