BHIMA NAYAK Vs. PANJASHAW DURGAH

JUDGEMENT

(1.) THIS criminal revision has been filed to quash the order dated 8.11.1978 in M. C. No. 10/78 passed by the Executive Magistrate, Aska, converting a proceeding under Section 144, Criminal Procedure Code to one under Section 145, Criminal Procedure Code and issuing an order attaching the crops on the lands in question and keeping the same in the custody of the local Revenue Inspector and prohibiting both the parties to go upon the said lands. The petitioners in this criminal revision are members of the second party and the opposite parties are members of the first party in the said proceeding.' The impugned order was passed ex parte on hearing the Advocate for the first party and on perusing the report of the Officer -in -Charge, Aska P. S., which had been called for by the Magistrate on the filing of a petition under Section 144 Criminal Procedure Code by the opposite parties herein.

(2.) IT is submitted by the learned counsel for the petitioners that the proceeding under Section 145, Criminal Procedure Code should be quashed as by a series of judgments and decisions of competent Courts the title and possession in respect of the lands in question have been declared in favour of the petitioners (second party members in the Court below) and the Executive Magistrate has to respect and uphold those decisions and cannot again subject the petitioners to a proceeding under Section 145, Criminal Procedure Code

(3.) THE correctness of the facts stated above has not been assailed by Mr. Basu, the learned counsel for the opposite parties. He, however, states that in the fresh Survey and Settlement operations the Assistant Settlement Officer on 7.10.1963 held that the claim of the petitioners that they were the occupancy rayats of the lands was not maintainable; and that the Dargha, of which the opposite parties were the muzawars, was in possession of the disputed lands. The order fixing the rent to be paid by the Dargha in respect of the lands has been finalised on contest in 1975. Mr. Basu submits that as the said findings and order have become final and the petitioners have not filed any suit for declaration of their occupancy right after the said settlement of the lands and fixation of rent, the petitioners cannot any further agitate their claim of occupancy right in respect of the lands in question. He further says that in O. E. A. Appeal No. 24/64 the Additional District Magistrate at one stage had directed that the lands in question, which had been kept under attachment in a 145 proceeding, be released in favour of the opposite parties on 10.6.1966, and in accordance with that direction for delivery of possession of the lands in question was effected in favour of the opposite parties on 10.6.1966. Mr. Basu contends that as there is no positive evidence on record that the said lands were taken back from the opposite parties and possession of the same was actually delivered in favour of the petitioners at any later date, and as there is positive material before the court regarding apprehension of breach of peace, the Magistrate was legally justified and competent to initiate the present proceeding under Section 145 Criminal Procedure Code, and this Court cannot quash this proceeding as prayed for by the petitioners.