KUMAR PADHAN Vs. HARA BHOI

JUDGEMENT

(1.) THE members of the 2nd Party in the proceeding under Section 145, Criminal Procedure Code are the petitioners. The subject -matter of dispute is 23.84 acres in holding No. 11 of village Changunria. The brief facts of the case are that one Bhuban Padhan had five sons and he left certain lands in village Dubalabahal as well as 47.82 acres in village Changuria. After the death of Bhuban, the disputed lands measuring 23 and odd acres in Changuria were possessed by Mabadeb, one of the sons of Bhuban, while the remaining lands in Dubalababal and Changuria were possessed by members representing the other four branches. Mahadeb died leaving his widow Gharjugi and three daughter a Hara, Sushila and Pira. These daughters, besides the son of Hara and the husbands of the two other daughters constitute members of the 1st party. They claim to be in possession of the disputed lands. On the other hand, the members of the 2nd party who represent the remaining four branches allege that the properties in both the villages stand jointly recorded, though for the sake convenience, each of them possessed portions according to their respective shares. In Changuria, Mahadeb possessed 9 and odd acres which after his death was possessed by his widow Gharjugi who left for her parent's house and entrusted the lands to some members of the 2nd party for cultivation and payment of her share. As such, they claim to be in possession. The learned Magistrate by the impugned order declared the possession of the disputed lands by the 1st party.

(2.) LEARNED counsel for petitioners assails the impugned order on the following grounds (1) there is no finding that the 1st party was in possession of the disputed lands on the date of the preliminary order; (2) the learned Magistrate has not considered the documents filed by either party; (3) the affidavits filed by respective p ies have not been critically examined and (4) the learned Magistrate has failed to understand and appreciate the contentions of respective parties and has come to an erroneous conclusion. There is considerable force in each of the contentions raised on behalf of petitioners.

(3.) TWO other points raised by learned counsel for petitioners are that he has not considered the documents filed by either party nor has be critically examined the affidavits filed. In other words, the question is whether the learned Magistrate has failed to exercise his jurisdiction properly in not critically examining the documents and affidavits filed in the case. The duty of the Magistrate and the manner in which he has to consider the evidence has repeatedly come up for consideration before this Court and the principles have been clearly enunciated. Section 145(4), Criminal Procedure Code, lays down the manner of enquiry to be adopted to determine the question of possession. It requires that the Magistrate is to pursue the statements, documents and affidavits put in and hear the parties. In the decision reported in (1965) 31 Cut LT 251 : (AIR 1965 Orissa 208), Murli Patel v. Purushottam Bhati, the meaning of the word "pursue" was examined and explained as follows :