MANGALA MAJHI Vs. SALGE BEWA
HIGH COURT OF ORISSA
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G.K.MISRA, J. -
(1.) SECOND party members are the petitioners. Mangala Maihi, petitioner No. 1, is the father of petitioners 2 and 3. The husband of opposite party No. 1 Salge Bewa and Mangala are two brothers. Opposite party No. 2 is a transferee from opposite party No. 1 in respect of plot Nos. 590/871 and 590/872. The case of opposite party No. 1 is that her husband was separate from Mansala; the disputed lands were allotted to her husband's share; she has been all through in possession and the petitioners taking law into their own hands have disturbed her possession within two months of the preliminary order passed on 4 -2 -72. She transferred plot Nos. 590/871 and 590/872 to opposite party No. 2 by a registered sale deed dated 1 -7 -71. The case of the second party members is that there was no partition and all through they are in possession. The learned Magistrate declared possession in favour of the opposite parties except in respect of plots 19, 145 and 148/1 and passed an order forbidding the petitioners to disturb their possession of the disputed lands. It is against this order that the criminal revision has been filed.
(2.) NO affidavit has been filed by opposite party No. 1. Six affidavits have been filed by opposite party No. 2 including an affidavit from opposite party No. 1. All these affidavits support the case of the first party members. 13 affidavits have been filed by the petitioners and they support the case of the second party members. If one is to go by affidavits alone, then there is no scope for interference with the order of the learned Magistrate. Affidavits on either side are balanced.
The learned Magistrate, however, ignored the significance of a statement made by opposite party No. 1 before the Tahasildar in a mutation case on 16 -6 -72. Therein she clearly admitted that though the disputed properties fell to her husband's share, the petitioners were in forcible possession thereof for the last 4 to 5 years and were not giving any paddy or rice to her. This unequivocal admission has been ignored by the learned Magistrate on the ground that it was not a statement on oath. This statement taken by the Tahasildar who has given a certificate that it was read over, explained and admitted to be correct by the deponent is admissible under Section 35 of the Evidence Act. The statement was filed in court along with the written statement of the second party members. Opposite party No. 1 in her affidavit, did not challenge this document as not being genuine. It has already been held by a Bench of this court that in a proceeding under Section 145, Criminal Procedure Code the documents need not be marked and exhibited. The learned Magistrate therefore, acted illegally in not properly appreciating the significance of this document and in completely discarding it from consideration. It is not necessary to, go into the petition filed by opposite party No. 1 on 27 -4 -71 before the S.D.O., Kaptipada, wherein she admitted that she had been dispossessed and possession should be delivered to her. The admission made before Tahasildar is enough to come to a conclusion that the first party members are not in possession of the disputed properties for the last 4 to 5 years. If this piece of evidence is considered along with the affidavits filed on either side, the affidavits of second party members represent the truth and the reasonable inference would be that the second party members were in possession of the disputed lands except plot No. 587/1 on the date of the preliminary order. Plot No. 587/1 is excluded as it did not find place in the preliminary order and consequently is not the subject -matter of dispute in respect of which an order under Section 145, Criminal Procedure Code was passed. The learned Magistrate had declared possession of petitioner No. 3 in respect of plots Nos. 19, 145 and 148/1. No revision was filed by the first party, members challenging this conclusion. The possession of the second party members in respect of these three plots has become final by the order of the learned Magistrate.
(3.) ON the aforesaid analysis, the order of the learned Magistrate is set aside except in respect of plots Nos. 19, 145 and 148/1. His order in respect of plot No. 587/1 is also set aside as the same does not constitute the subject -matter of dispute and possession of any of the parties cannot be declared in respect of that plot in respect of all other plots, the order of the learned Magistrate is set aside and the criminal revision is allowed. The possession of the second party members in respect of all the disputed lands except plot No. 587/1 which is not the subject -matter of dispute is declared and they are to retain possession until eviction in due course of law. The first party members are forbidden from disturbing their possession until such eviction. Revision allowed.;
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