Decided on August 13,1953

Abdhut Pradhan And Two Ors. Appellant
Rameswar Poddar And Twenty Ors. Respondents


Panigrahi, J. - (1.) THIS revision is filed against an order of Sri B.K. Bohidar, magistrate, First Class, Sambalpur, in a proceeding under Section 145 Code of Criminal Procedure by which he upheld the possession of the second party. The facts are that the first party claims to have obtained a lease of the lands from opposite party No. 1 Rameswar Poddar, by a stamped document dated 2 -5 -46. It is also his case; that he had been in undisturbed possession of the lands measuring 18 acres and odd since then. On 7 -10 -49, opposite party No. 1 with the assistance of a number of others forcibly cut and removed the crops on a plot known as Kamar Mahal. The crops of the other lands were still standing and were unripe. The first party tiled a complaint under Section 379 I.P.C. for wrongful removal of paddy, but that was ultimately dismissed. He also appears to have reported to the Police, and the S.I. of Policy subsequently reported on 23 -10 -49 to the Sub -Divisional Magistrate, recommending Action under Section 144 Code of Criminal Procedure as he found that a breach of peace was imminent. On 11 -11 -49 the Sub -Divisional Magistrate directed the S.I. of Policy to enquire and report by 1 -12 -49, and to keep the paddy in proper custody after reaping it, till the disposal of the case. On receipt of the final report proceedings under Section 145 Code of Criminal Procedure were drawn up and a preliminary notice was issued on 21 -12 -49, calling upon the parties to file their written statements by 28 -12 -49. The preliminary order also shows that the lands and the crops standing thereon were attached simultaneously. It was further ordered that the S.I. of Police should see that the standing crops were reaped and kept in proper custody. The Magistrate who enquired into the proceeding under Section 145 Code of Criminal Procedure held that the first party was in physical possession of the lands and that the second party dispossessed him on 7 -10 -49. He also held that there was no apprehension of a breach of the peace. But curiously enough he ordered, under Section 145(6) Code of Criminal Procedure that second party No. 1 should retain possession of the disputed lands until evicted therefrom in due course of taw. While making this order he directed that the paddy should be returned to Petitioner No. 1 (Abdhul Pradhan). It is impossible to make any sense out of these conflicting orders passed in the course of the same proceeding. The Magistrate was obviously in error in thinking that a fugitive Act of clandestine removal of paddy from one of the plots in dispute amounted to dispossession. He also appears to have overlooked the fact that on 11 -11 -49 the Sub -Divisional Magistrate had ordered the paddy to be kept in proper custody. This would show that there was still some paddy to be reaped from the lands claimed by Petitioner No. 1. Even by 21 -12 -49 (the date on which notice was issued) the paddy had not been out and it as attached by the Sub -Divisional Magistrate when the notice was issued. The question therefore is whether the lands had ever been taken possession of by the opposite party No. 1 so as to amount to dispossession of the Petitioner. As the order sheet would show, even by 11 -11 -49 opposite party No. 1 had not removed the paddy standing on the lands, except that on the plot known as. Kamar Mahal. In view of the categorical finding of the Magistrate that the first party was in possession it should follow that the paddy that was attached, had been raised by the first party and that he had not been dispossessed until 11 -11 -49. I am 'therefore' unable to understand the reasoning of the learned Magistrate when he says that there was 80 complete dispossession of the first party on 7 -10 -49. Having regard to the findings recorded by him, the order of the Magistrate cannot be sustained. As he has also held that there is no apprehension of a breach of the peace, I would set aside the order passed by him under Section 145 Code of Criminal Procedure and direct that the disputed lands and the crops, or their sale proceeds, in respect of the lands under attachment, should be restored to the first party. This revision is therefore allowed.;

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