LACHHAMAN MALLICK Vs. NISAKAR MALLICK

JUDGEMENT

(1.) The petitioners, .who are second party members in a proceeding Under Section 144, Cr.P.C, have challenged the preliminary order dated 8.12.1998 passed by the Executive Magistrate, Kujang restraining them and the first party members from entering upon the disputed land and directing them to appear on the date fixed.

(2.) THE short fact of the case of the parties was that the opposite parties as first party members filed a petition before the learned Executive Magistrate, Kujang for initiation of a proceeding Under Section 144, Cr.P.C. pleading inter alia that the scheduled lanids stood recorded in the name of one Dharamu Mallick as a tenant under the Deity Sri Binod Kumari Thakurani during 1930 settlement. After the death of Dharamu, because of the dissention between the parties with regard to possession of the scheduled land, a settlement was made by the gentlemen of the village on 11.11.1960. The first party members being share -holders and successors of Dharamu Mallick were allowed to possess half of the scheduled land and the second party members being the legal heirs of Panu Mallick were allowed half share in the scheduled property. On the basis of the compromise both parties possessed the scheduled land half and half. But since Panu Mallick remained outside and failed to discharge his obligation of 'seva puja' of the Thakurani, the first party member with the help of villagers took all charges of Thakurani and did all Seva Puja and enjoyed the usufructs of the whole property and remained in possession till date. In the year 1979, Crl.Misc. Case No. 199 of 1979 and Crl.Misc. Case No.' 238 of 1979 were decided against the petitioners. During the current year, paddy crops and Biri were raised in the scheduled land, which are ripe for harvesting. There is also fish pond and hutment in the scheduled land, but the second party members -petitioners having no possession over the disputed land and having no right, title and interest, being goonda and roudy nature they have tried to dispossess the first party members by threatening to cut paddy and crop and to catch fish and destroy the hutments forcibly, there is apprehension of breach of peace between the parties. A prayer was made in the petition as would be revealed from the complaint petition itself to initiate a proceeding Under Section 144 Cr.P.C. restraining the second party members and their henchmen not to go upon the disputed land and to declare the possession of the first party members absolute. A copy of the petition has been annexed to this petition as Annexure -1 and the prayer may be quoted hereunder : 'It is therefore prayed that your honour may be graciously pleased to initiate a proceeding Under Section 144, Cr.P.C. restraining the second party members and their henchmen not to go upon the disputed land and after hearing the possession of the 1st party members be declared absolute. And for which act of your kindness, the 1 st party petitioners as in duty bound shall ever pray.' It appears that the learned l:ccutive Magistrates called for a police report pursuant to which the report was submitted by the Paradip Lock outpost. The police report revealed that Biri crop is grown in the scheduled land, which is at the stage of harvesting and there is fish pond and both the parties are trying to catch fish and harvest Biri from the land. There is every possibility of apprehension of serious breach of peace like murder, rioting between the parties, if preventive measures are not taken.On the basis of the police report, the learned Executive Magistrate, by his order dated 8.12.1998 under Annexure' -3 restrained both the parties from entering upon the disputed land and to appear on 21.12.1998.

(3.) MR . H. Mohanty, learned counsel for the opposite parties however contended that the opposite parties being in possession of the properties and the petitioners having created disturbance in their lawful possession and there being apprehension of serious breach of peace, they had no other alternative than to approach the Executive Magistrate for an order Under Section 144, Cr.P.C. It is further contended that in view of the provision of Sec. 144(5) Cr.P.C. empowering the Magistrate to rescind or vary the order passed Under Section 144(2), Cr.P.C, the petitioners ought to have approached the Magistrate and that having not been done, the present revision is not maintainable. It is further contended that the opposite parties have filed an application under Order 39, Rules 1 and 2, C.P.C. before the appellate Court, but no order having been passed inasmuch as pendency of civil proceeding is no bar for initiation of a proceeding Under Section 145, Cr.P.C. - - - -