ARJUNA PRUSTY Vs. HAMA BARIK AND SIX ORS.

JUDGEMENT

(1.) THE first party in 145 Code of Criminal Procedure proceeding is in revision before this Court against the declaration of possession in favour of opposite party No. 3 who was second party in the proceeding. It was the Petitioner's case that the disputed land is a Government poramboke land of which he has been in possession and because of his encroachment, encroachment case beating L.E.C. No. 3661/82 had been started against him but the members of the second party opposite parties have threatened to cut and carry away the crops for which the proceeding was stated. Contesting such claim, it was the claim of the opposite party No. 3 that the disputed properties are the properties of the entire village manageably the village Kotha originally through one Gopi Fatesingh and thereafter through the opposite party No. 3 as a tenant and that the income of the land is Utilised by the village committee of which the Petitioner himself it a member for the management of the U.P. School and the Public Health Center. In the resolution dated 6 -2 -1968 of the Managing Committee he was inducted as a tenant of the land. It was the further case of the opposite parties that in a previous 145 Code of Criminal Procedure proceeding bearing Misc. Case No. 296/68 wherein both the opposite party No. 3 as also the Petitioner figured as members of the second party the possession of the opposite party No. 3 was declared expressly recognising his tight to continue in possession until evicted from it in due course of law. Such decision in that proceeding was also challenged by the members of the second party in that case in Crl. Revision No. 462/71 before this Court which was dismissed on 15 -3 -1973. Thereafter a suit was instituted by some members of the same second patty bearing T.S. No. 64/73 against the opposite. party No. 3 and the President of the village committee. The suit was dismissed and an appeal bearing Title Appeal No. 1/81 (4/77 GDC) preferred against the judgment and decree was also dismissed in the court of the Subordinate Judge, Berhampur, as against which, Second Appeal No. 78 of 1982 is pending in this Court.

(2.) IT is the admitted case of the Petitioner that he and the opposite party No. 3 are both parties in L.E.C. No. 3661/82 which was disposed of by the Tahasildar in favour of the opposite party No. 3. The decision of the Tahasildar was challenged by the Petitioner in appeal which having failed is now pending in revision before the Additional District Magistrate. Chatrapur at the instance of the Petitioner.

(3.) IN the present case, initiated by him, the Petitioner has not pleaded to have dispossessed the opposite party No. 3 nor has pleaded in which manner he came into possession of the land. In Giridhari Rout v. Bai alias Bairagi Parida and Ors. Cr. Rev. No. 123/84, decided on 19 -7 -1988 the question as to the effect of a decision in a previous 145 Code of Criminal Procedure proceeding on a proceeding commenced later on was considered and was held that where the possession of one of the parties in a previous proceeding had been declared, law must not in aid of maintaining such possession rather than disturb it and if any interference to such possession is threatened, the proper course is not to start a fresh proceeding under Section 145 Code of Criminal Procedure but to bind down the offending persons under Section 107 Code of Criminal Procedure. It was observed that, if the decision in the previous proceeding is not a recent ones but had been passed long back there might be occasion for the same situation regarding possession as decided in the earlier proceeding not to have continued and that a different state of things might have come into existence, but however since there IS a presumption of continuance of possession in favour of the successful party and the law gives protection to continuance of possession until varied by a competent court it must be the business of the judicial authorities to respect the previous declaration and not attempt to re -scan it at the slightest excuse. If the unsuccessful party comes up with a case of continuing in possession despite the previous order against him then clearly such plea is not entitled to be entertained and has to be thrown out in limine, the only exception being to a case where such party pleads of having re -entered possession and establishes such fact. Hence a party bound by a previous decision in 145, Code of Criminal Procedure proceeding cannot succeed to divest the effect of that order merely by submitting that he bad been in possession without pleading specifically of having re -entered possession and the manner of it and also establishing such fact.