BHAGABAN BEHERA AND ANR. Vs. HISABAR BEBERA

JUDGEMENT

(1.) THIS revision arises out of an order dated 30 -8 -66 passed in a proceeding under Section 145 of the Code of Criminal Procedure by the S.D.O. -cum -Magistrate 1st Class, Dhenkanal in Criminal Misc. Case No. 26 of 1965.

(2.) HISABAR Behera, 1st Party and Bhagaban Behera, 2nd Party No. 1 are two sons of Bhikari. Nidhishyam Behera is the son of Bhagaban Behera, 2nd Party No. 1. Bhikari and Pandab were two brothers. After Pandab's death Hisabar purchased in 1950 Pan dab's share of property from Malia, the widow of Pandab. Thereafter in 1951 Bhagaban's son Nidhishyam, 2nd Party No. 2 purchased the whole share of Bhikari by a registered sale -deed, and got his name recorded with respect as the said property. The dispute is therefore with regard to the property belonging to Bhikari, which in its entirety was transferred in the name of the 2nd Party No. 2.

(3.) IN this case before me, apart from other documentary evidence, 3 affidavits on behalf of the 1st Party and 2 affidavits on behalf of the 2nd Party were filed. Without going into the respective merits of the affidavits filed on behalf of both the parties, specially with regard to the fact of possession, and perhaps being obsessed by his own observations, that no partition deed is there to indicate individual possession except the registered sale deed executed in 1951 to which the 1st Party had no knowledge, there is no other document to show as to why the 1st Party be deprived of any interest from his paternal property the learned Magistrate jumped to the conclusion that the 1st Party was in possession of the disputed land prior to the preliminary order.