DHIRENDRANATH PANDA ALIAS MISRA Vs. NIRANJAN KUMAR MISRA

JUDGEMENT

(1.) THIS revision is directed against an order passed by the Executive Magistrate, Bhadrak, declining to interfere with the preliminary order dated 29 -11 -1988 and directing the local Revenue Inspector to remain as the custodian of disputed land.

(2.) FACTS of the case. The disputed lands with an area of 3.85 acres are situated in three villages named, Ishanpur, Sadanandapur and Guamal within Tihidi Police Station of Bhadrak sub -division as per the land schedule of the preliminary order. Mohan Misra, admittedly was the owner thereof. Opposite party No. 1 who is the first party claims possession of the disputed lands as the adopted son of Mohan Misra whereas, the petitioner who is a member of the second party in the proceeding under Section 145 of Criminal Procedure Code claims that he is the adopted son and is in possession thereof. There cannot be two adopted sons of the adoptive father and both of them cannot at the same time remain in possession of the lands left by him. Either opposite party No.1 is the adopted son in possession of the suit lands or the petitioner is the adopted son of Mohan Misra who is in possession thereof. In order to resolve their mutual dispute, both of them have taken recourse of civil, as well as criminal proceedings. On the civil side, opposite party No. 1 has filed Title Suit No. 86 of 1988 in the Court of Munsif, Bhadrak: claiming to be the adopted son of Mohan Misra and consequently he is entitled to the disputed lands left by him. Petitioner is the defendant in that suit. Title Suit No. 194 of 1987 was instituted by the widow of Mohan Misra for setting aside the deed of adoption said to have been executed in favour of the petitioner. Facts are not clear as to who has been substituted as the legal representative in the suit after her death. But this much is clear and is not in the dispute that in Title Suit No. 86 of 1988 opposite party No.1 filed a petition under Order 39, Rule I of the Criminal Procedure Code which has since been disposed of and both parties to the suit have been temporarily injuncted from alienating the disputed lands or any part thereof. Against the aforesaid order opposite party No.1 has filed Miscellaneous Appeal No. 39 of 1988 which is pending in the court of the Subordinate Judge, Bhadrak. In the said appeal, Misc. Case No. 147 of 1988 has also been filed by him under Order 39, Rule I of the Criminal Procedure Code paying for injuncting the petitioner from coming over and disturbing his possession in respect of the disputed lands. On the criminal side, Misc. Case No. 67 of 1988 under Section 145 of the Criminal Procedure Code, was initiated and as already referred to above, a preliminary order was passed by the Executive Magistrate on 29 -11 -1988. This case is pending.

(3.) IN the case in hand as already referred to above, both opposite party No.1 and the petitioner claim as adopted son of Mohan Misra. Two suits have been filed. In a proceedings arising out of one of the suits (Title Suit No. 86 of 1988) a petition for temporary injunction has been filed by opposite party No.1. If the court after hearing both parties grants injunction restraining the petitioner from entering upon the disputed land, then there shall be no possibility of apprehension of breach of peace and in case the petitioner shall violate the order there is appropriate penalty provided in the Criminal Procedure Code, itself for punishment. If, on the other hand, the petition for temporary injunction will be rejected, it must be deemed to mean that the court intends the property to be retained by the petitioner till the disposal of the suit. So, in either case, the Civil Court is competent to pass orders, whereby apprehension of breach of peace between the parties can be averts In such an event, there is absolutely no necessity to take recourse to parallel proceedings in the Civil Court and under, Section 145 of the Criminal Procedure Code.