LALIT KISHORE DAS Vs. GADADHAR JENA

JUDGEMENT

(1.) In this case the order passed by the learned Second Additional Sessions Judge, Berhampur, upholding the order of the Executive Magistrate, Bhanjanagar, under S.145. Cr. P.C. has been assailed.

(2.) The case of the petitioner (first party) was that he was in possession of the disputed 9 cents of land, a thrashing floor, situate in village Pochalundi under Gangapur Police Station. The opposite parties threatened to dispossess him, whereby, there was apprehension of breach of peace. The case of the opposite parties (members of the second party) was that they had raised paddy crops on the disputed land and were in possession thereof. The Executive Magistrate initiated the proceeding and drew up the prelimainary order on 11-1-1984 and directed the parties to submit their written statements. The parties submitted their written statements and produced documents. Arguments advanced by their counsel were heard on 2-4-1984 and on 7-4-1984 by making reference to several documents which had been produced by the parties, he came to hold that the opposite parties were in possession of the disputed land and there was no apprehension of any breach of peace. Therefore, he cancelled the preliminary order according to the provisions of S.145(5), Cr. P.C. The petitioner filed a revision which came for disposal before the learned Second Additional Sessions Judge who did not interfere and upheld the order.

(3.) Mr. Manoj Misra, learned counsel for the petitioner, urged that while passing an order under S.145(5), Cr. P.C. cancelling the order under Sub-Sec. (1) thereof, the Executive Magistrate was not required to declare the possession of any of the parties. Therefore, he committed an illegality in this case by declaring the possession of the opposite parties in respect of the land in dispute. This contention requires examination.