HRUSIKESH MISRA AND ANR. Vs. BHAKTABANDHU MOHANT

JUDGEMENT

(1.) THIS is Defendants second appeal against the appellate judgment of the learned subordinate Judge, Mayurbhanj, reversing a decision of the learned Munsif, Rairangpur, on circuit at Karanjia, dismissing the suit filed by the Plaintiff -Respondent.

(2.) THIS matter arose in these circumstances The Plaintiff's case is that he purchased the suit land in 1941 from one Nilambar Panigrahi, father of the Defendant No. 2, by oral sale accompanied by delivery of possession. In June 1951, the Plaintiff allowed the Defendant No. 1 to construct a temporary shed on the suit land for his betel shop on his executing a Chuktipatra (ext. 3) dated 24 -6 -1951 on condition that the Defendant No. 1 would give up the site and this would come to his use when required. In August 1952, it appears from the records, the Defendant No. 1 lodged information at the local police station charging the Plaintiff under Section 379 Indian Penal Code for theft of certain crops from a portion of the suit land. The police, however, after enquiry submitted Final Report. The Defendant No. 1 did not rest there. He obviously with a view to create evidence started proceedings under Section 145 Code of Criminal Procedure in respect of the suit land. There again he was unsuccessful. Ext. 5 is a certified copy of the order of the learned Magistrate in the said proceedings under Section 145 Code of Criminal Procedure From the order it appears that the 2nd party being the Plaintiff in the present suit, was directed to continue in possession although the learned Magistrate dropped the proceedings on evidence before him. It has to be noted that the learned Magistrate did not mention anything about the 1st party's, namely, the Defendant No. 1's possession over the suit land in the proceedings before him.

(3.) THE learned Munsif dismissed the suit mainly on the ground that it was apparent from the evidence on the side of the Plaintiff that he got no delivery of possession of the property he had purchased from Nilambar Panigrahi.