AMBICA PATEL Vs. BIMSEN PATI AND ORS.

JUDGEMENT

(1.) COMMON order dt. 24.11.1997 passed in Criminal Misc. Case No. 298/97 and Criminal Misc. Case No. 303/97, both under Section 144 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') of the Court of Shri B. Majhi, Executive Magistrate, Bargarh is under challenge in this revision.

(2.) CRIMINAL Misc. Case No. 298/97 was initiated at the instance of the opposite patty No. 4, namely, Sibnarayan Pati whereas Criminal Misc. Case No. 303/97 was initiated at the instance of the present Petitioner, namely, Mr. Ambica Patel. Learned Counsel for the Petitioner has filed series of documents which includes the record of right of the case land, certified copy of the judgments and decrees in Title Suit Nos. 17/71, 59/74,19/75 and 30/81 besides the judgment in Criminal Revision No. 494 of 1974 and Settlement Appeal No. 96 of 1997. It is not necessary to go into details of the subject -matter of dispute and the decisions in the aforesaid civil, revenue and criminal proceedings. It is sufficient to indicate here, in that respect, that the aforesaid series of litigations between the parties or their co -owners or predecessors in interest relates to the disputed holding under which the disputed case land has been recorded. Learned Executive Magistrate without making proper appreciation of acts and evidence and in a haphazard manner dealing with the contention of both the parties decided the factum of possession against the Petitioner and accordingly restrained her under Section 144 of the Code to not to enter into the case land "until and otherwise this order is reversed."

(3.) AS noted above, after going through the impugned order this Court finds that learned Executive Magistrate has not at all applied his mind to the facts and the circumstances available in the case and mechanically he accepted the latest decision of the Civil Court Le. the decree in Title Suit No. 30/81 and that is how declared the factum of possession against the Petitioner. That decree goes to show that opp. party No. 4 has 14th interest over the lands recorded under the disputed holding. Apart from that, learned Magistrate if found that there is a dispute between the parties relating to possession of land resulting in apprehension of breach of peace, he should have undertaken an enquiry under Section 145 of the Code after drawing preliminary order and affording opportunity of filing written statement and adducing evidence by the parties. On the other hand, if the learned Magistrate was of the opinion that the factum of ownership and possession has become conclusively in favour of any of the parties and it is supported with a recent Civil Court decree, he should have initiated proceeding under Section 107 to prevent apprehension of breach of peace as against the trespassers/aggressors. A proceeding under Section 144 of the Code under such circumstance is a poor substitute when a dispute of the aforesaid nature exists/occurs.