Decided on May 10,1973

Radhamohan Panda And 5 Ors. Appellant
GANESH PANDA Respondents


S. Acharya, J. - (1.) THIS revision is directed against the order dated 25 -4 -1972 passed by the Sub -Divisional officer -cum Magistrate first class, Bhanjanagar in M.C. No. 235 of 1969, a proceeding under Section 145, Code of Criminal Procedure.
(2.) MR . N.V. Ramdas the learned Counsel for the Petitioners (second party in the Court below) contends that the impugned order passed by the Magistrate is patently illegal as he does not state therein as to who actually was in possession of the disputed property on the date on which the preliminary order was passed, or whether the first party, in whose favour the impugned order was passed, was actually in possession of the disputed property on the date of preliminary order. In the operative portion d the impugned order the learned Magistrate only states that the first party was in possession of the land 'prior to the initiation of the proceeding '. The word 'prior ' in the manner and context in which it has been used, may mean any time before the initiation of the proceeding without any limitation or qualification for the same. Sub -section (4) of Section 145, Code of Criminal Procedure is as follows: The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, here the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that x x x x x x x Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also that xx xx xx xx Admittedly there was no allegation of dispossession in this case, and so the above quoted second proviso to Sub -section (4) is not relevant and is not applicable to this case. Reading Sub -section (1) along with the main Sub -section (4) of Section 145, Code of Criminal Procedure it is quite clear that in the matter like this it is the bounden duty of the Magistrate to find out as to who was in possession of the disputed property on the date of the preliminary order. In this connection, the decision reported in, 1972 (2) C.W.R. may be seen. The Magistrate in this case has not given a finding to the above effect in the operative portion or any where in the impugned order. Accordingly the impugned order is not in accordance with law, and so it cannot be maintained. Apart from the above I also find that the magistrate has not perused the affidavits filed by the second party with due care and attention. While discussing the case of the second party the learned Magistrate observes that the affidavits filed by Suba Patra. Sandi Naik. Sama Jena and Lokhana Naik do not show as to how these persons could know that the second party was actually in possession of the disputed land as deposed to on affidavit by them. On the above observation the Court discarded their affidavits. On a perusal of the affidavit of the above named persons I find that they have in fact stated therein their own reasons to the above effect and the above observation of the Court below is incorrect and is an error of record. So the magistrate acted illegally in discarding the affidavits of the above mentioned persons. The Court below has also not considered the affidavits of other persons and the documents filed by both the parties in the proper and desired manner.
(3.) ON the above mentioned reasons and grounds the impugned order is set aside and the case is sent back to the Court below to be properly reheard and disposed of in accordance with law within two months of the receipt of the L.C.R. on notice to both the parties. This Court be informed about the disposal of the matter as directed above. The revision accordingly is allowed. The lower Court record be sent back immediately.;

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