Decided on November 20,1973

Chakradhar Rout And Anr. Appellant
STATE Respondents


G.K.Misra, J. - (1.) DISPUTED land measures 0.84 acre appertaining to plot Nos. 10 and 27 in village Napang in the district of Balasore. Admittedly this land originally belonged to one Paramananda Mohanty (p.w. 7) Kalandi Naik (p.w. 3), father of the informant p.w. 1, and Duryodhan Sa mal (p.w. 2), the son in -law of p.w. 3 purchased the disputed land On 20th of October, 1967. Prosecution case is that 2 and 3 grew the paddy and the Petitioners removed the crop on 1 -12 -1968 in the morning. The defence of the Petitioner is that they were Bhagchasis under p.w. 7 for the last 30 years and they were all along in the cultivating possession of the disputed land. They said that they filed O.L. It Case No. 2 of 1966 -67 on 12th of March, 1966 against p.w. 7 who executed a sale deed in favour of 2 and 3 on 20th of October, 1967. After the transferees were impleaded as parties in the O.L.R. case, they filed two criminal cases against the Petitioners for removal of crops of the years 1967 and 1968. The learned Courts below accepted the prosecution story and rejected the defence version. The Petitioners have been convicted under Section 379 Indian Penal Code and sentenced to pay a fine of Rs. 60/ - each, in default to S.I. for 15 days each. It is against the order of the Sessions Judge that the criminal revision has been filed.
(2.) PROSECUTION case is proved through 1 to 3, the transferees, p.w. 7, the transferor and 4 to 6 who speak of possession of 2 and 3 and removal of the crop by the Petitioners which was grown by 2 and 3. The learned Courts below have thoroughly discussed their evidence. Mr. Sahu took me through the evidence. I find no justification to take a different view in revision. Mr. Sahu, however, places strong reliance on certain circumstances. He contended that the filing of a case under the O.L.R. Act in 1966 is proof of the bona -fide claim of right of die Petitioner. The contention by itself is not sound. Even if a person has not a frivolous claim, he might as well take legal action to establish that claim. Mere filing of a case, therefore, does not establish that the dispute is in respect of a bona -fide claim.
(3.) HE next places reliance on Ext. B dated 21 -7 -1969, a report of the Revenue Supervisor (d.w. 1) who was directed by the Tahasildar in the aforesaid O.L.R. case to report about possession. The report shows that the Petitioners were in possession as Bhagchasis. Though the report is admissible under Section 35 of the Evidence Act as having been submitted by a public servant in due discharge of his duties, yet it has not any evidentiary value so far as factum of possession is concerned. The Revenue Supervisor has no personal knowledge of his known. It is only after taking evidence he took one View. His view is not final and is subject to the ultimate decision that would be taken by the Tahasildar. His report at intermediate stage does not establish that the Petitioners were in possession. Moreover, the report is subsequent to the date of occurrence. Ext. B, therefore, cannot be used as a piece of evidence to show that the Petitioners were in possession. Mr. Sahu places reliance on Ext. C, a station diary entry made by one Ramchandra Naik, a son of p.w. 3, on 18 -12 -1967. In this station -diary entry Ramchandra Naik admitted possession of the disputed land by Petitioner No. 1. Ext. C is inadmissible in evidence. It is a previous statement of Ramchandra Naik. It can be used either for contradiction under Section 145 or for corroboration under Section 157 of the Evidence Act of the maker thereof. Ramchandra is not a witness. Ext. C is not a piece of substantive evidence and is inadmissible in evidence. Mr. Sahu then contended that d.w. 3, a neighbouring tenant, should have been believed. The two Courts below not having believed him, there is no question of his evidence being accepted in revision.;

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