RAM KISHAN KETAN Vs. UPADHYANATH PRADHAN

JUDGEMENT

(1.) THIS Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P. C. challenging the order dated 17-4-2008 passed by the learned Executive magistrate, Jharsuguda in CMC No. 186 of 2008.

(2.) THE facts as narrated in the application are as follows : the present petitioners are the second party members in a proceeding under Section 145, Cr. P. C. They were in possession of the disputed land total measuring Ac. O. 560 decs. in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0. 56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot nos. 1339 and 1340 with an area of Ac. 0. 420 and Ac. 0. 140 respectively total Ac. 0. 560 decs. and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0. 56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar lal Khetan and the West Southern part of ac. 0. 28 dec. was allotted to Ram Kishan khetan, the present petitioner No. 1 vide annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a chuda Mill which is running till date.

(3.) WHILE the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, cr. P. C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0. 20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0. 20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0. 140 decs. in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite party filed an application before the Executive Magistrate, jharsuguda with a prayer to initiate a proceeding under Section 145 (1), Cr. P. C. and attach the land under Section 146 (1), Cr. P. C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as "ms plot No. 1340 area Ac. 0. 140 dec. of MS khata No. 386 of Mouza Jharsuguda Town unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0. 20 dec. of HS Plot No. 1, Mouza-Jharsuguda". The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145 (1), Cr. P. C. Thereafter, without recording any subjective satisfaction as required under Section 146 (1)of the Cr. P. C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.