SRIBATSA PRADHAN Vs. NARASU NAIKA AND TWO ORS

JUDGEMENT

(1.) THIS is a petition to revise a final order under Section 145, Cr. P. Code, passed by a Special First Class Magistrate of Aska, in the district of Ganjam, declaring the apposite party (1st party before him) to be entitled to possession of the disputed property until eviction in due course of law.

(2.) A proceeding under Section 145, Cr. P. Code was initiated on 6-91942 on account of a dispute bet ween the parties regarding certain plots of land in village Lekhamari, P. S. Bodogada. As there was a criminal case between the parties in respect of the same property, that proceeding was kept pending. The Criminal case was fought up to the High Court and the judgment of the High Court was given only on 7-81958 (Criminal Revision No. 331/1957 ). In that judgment, the trial Court's finding regarding possession of the disputed property by the com plainant was upheld as it was based partly on the presumption of correctness attaching to the recent settlement entry and partly on the oral evidence of witnesses. After the delivery of judgment by the High Court, the proceeding under Section 145, Cr. P. Code, was resumed, and on 22-9-1958 the learned Magistrate gave both parties an opportunity to file documents and affidavits in support of their respective claims and further observed "that the trial will be according to the amended procedure". Strictly speaking this view of the Magistrate is wrong because the amendment made to Section 145, Cr. P. C. (by Act XXVI) of 1956 was not given retrospective effect so as to affect pending proceedings (see Section 160) and the case should have been disposed of in accordance with the law as it stood prior to the amendment. But neither party took any objection to this view of the Magistrate. If the petitioner felt aggrieved he should have immediately come to this Court in revision, or at any rate, on the next day of hearing, he could have filed an objection requesting the Magistrate to re-consider his view. The case was adjourned to 13-10-1958, 17-11-1958. 15-121958 and 19-12-1958. The opposite party filed documents and affidavits in support of their claims including the judgment of this Court in Criminal Revision 331 of 1957. The petitioner asked for time for filing his documents and affidavits. He did not volunteer to lead evidence on his behalf. After giving several adjournments the Magistrate ordered on 19-12-1958 that he could not grant any more adjournments as the case was pending for more than six years and then he disposed of it on the materials available before him and held the first party (opposite party) to be entitled to possession of the disputed property.

(3.) MR. H. G. Panda on behalf of the petitioner fairly conceded that, on the materials available before the Magistrate on 19-12-1958 the finding in favour of the opposite party was justified but he raised two important contentions in support of this revision petition.