HARI SINGH Vs. RAMA CHANDRA MISHRA AND ORS.

JUDGEMENT

(1.) ONE of the member of the second party in the proceeding under Section 145, Code of Criminal Procedure (for short "Code of Criminal Procedure") has filed this application under Section 482. Code of Criminal Procedure to set aside the order passed by the City Magistrate, Cuttack in Criminal Misc. Case. No. 724 of 1983 confirmed by the Addl. Sessions Judge, Cuttack in Criminal Revision No. 40 of 1986 declaring the first party to be in possession of the disputed properties on the date of the preliminary order.

(2.) THE proceeding was initiated at the instance of opposite party No. 1 (hereafter referred to as the "first party") on 9 -11 -1983. It was alleged by the first party inter alia, that he had purchased the disputed land and was possession the same. A Title suit bearing No. 15 of 1975 had been filed by him against the Petitioner Hari Singh (hereinafter referred to as "second party") wherein right title, interest and possession of the first party was declared. The appeal. Title Appeal No. 53 of 1976 filed by the second party was dismissed. Thereafter the first party filed Execution Case No. 13 of 1976 in which the said second party was evicted and delivery of possession was given to the first party sometime in 1976 through Court. Since then the first party has been in possession of the suit land and is occupying two thatched rooms standing thereon. Thereafter on several occasions the second party threatened to dispossess the first party. As stated by the first party there was likelihood of breach of the peace and he sought for immediate action by the learned Magistrate by initiating proceeding under Section 145 Code of Criminal Procedure The learned Magistrate on being satisfied about the existence of likelihood of breach of the peace concerning the disputed land passed the preliminary order on 9 -1 -1983.

(3.) BOTH the parties led evidence in support of their respective claims. During pendency of the proceeding, a petition was filed before the learned Magistrate on 8 -2 -1985 by the first party that on 5 -2 -19 -85 at 9.30 p.m. the second party wrongfully and forcibly occupied the disputed land. On consideration of the materials on record the learned Magistrate came to hold that the first party was in actual possession of the disputed land till 4 -2 -1985 and as such he was in possession of the said property on the date of the preliminary order. He did not accept the case of the second party that no actual delivery of possession was effected in favour of the first party in the Execution Case and the second party continued to be in possession of the property even thereafter.