TRINATH MOHANTY Vs. LAKHAN NAPAK AND ANR.
LAWS(ORI)-1978-12-22
HIGH COURT OF ORISSA
Decided on December 13,1978

Trinath Mohanty Appellant
VERSUS
Lakhan Napak And Anr. Respondents

JUDGEMENT

P.K.Mohanti, J. - (1.) THIS criminal revision is directed against an order of the learned Sessions Judge of Berhampur revising a final order under Section 145. Code of Criminal Procedure in exercise of his revisional jurisdiction.
(2.) PETITIONER and opposite party No. 1 figured as second party and first party respectively in the proceeding under Section 145. Code of Criminal Procedure. The case for the opposite party No. 1 was that the disputed lands belong to his private deity Ram -Lakshman -Sita and that he is in cultivating possession of the same as marfatdar of the deity. The Petitioner's case on the other hand was that he is the bhag tenant 'in respect of the disputed lands since the time of his father and that during the minority of opposite party No. 1, his mother had filed Title Suit No. 6 of 1965 wherein the Petitioner was declared to be the bhag tenant and the said decision was confirmed in appeal. It was also contended that in M. J. C. No. 181 of 1972 the mother (If opposite party No. 1 admitted, the Petitioner to be her tenant in respect of the disputed lands and that a proceeding under Section 36 -A of the Orissa Land Reforms Act is pending between the parties. On the report of the local police the learned Magistrate passed Of) 29 -11 -1971 a preliminary order under Section 145(1), Code of Criminal Procedure requiring both the parties to appear before him on 13 -12 -1977 and to put in written statements of their respective claims. By the same order he also directed that the disputed lands would be kept under the zima of the Revenue Inspector of Nimakhandi who would take care of the property and discharge his functions as defined under Section 145(8). Code of Criminal Procedure. After the parties filed their respective written statements the case was posted to 3 -1 -1978 for hearing. Thereafter hearing of the case was adjourned from time to time either at the instance of the parties or due to want of Court's time. The final order under Section 145, Code of Criminal Procedure was passed on 9 -3 -1978 declaring possession of the Petitioner over the disputed lands. Aggrieved by this order, the opposite party No. 1 preferred a criminal revision before the learned Sessions Judge who set aside the order of the learned Magistrate and directed that the subject -matter of dispute would continue to be under attachment and would remain in custody of the Revenue Inspector of Nimakhandi till the dispute between the parties was decided by a competent Court of law. According to the learned Judge, the order of the learned Magistrate keeping the subject -matter of dispute under the zima of the Revenue Inspector and directing him to discharge his functions under Section 145(8), Code of Criminal Procedure amounted to an order of attachment under Section 146(1). Code of Criminal Procedure and the Magistrate had no jurisdiction to proceed with the enquiry which had come to an end by such order of attachment. He also found that even assuming that the learned Magistrate had jurisdiction to proceed with the enquiry, the final order having been made without taking any evidence and without hearing the parties could not be sustained.
(3.) IT is urged on behalf of .the Petitioner that the order of the learned Magistrate keeping the subject -matter of dispute under the zima of the Revenue Inspector was an order under Section 145(8), Code of Criminal Procedure and not an order of attachment under Section 146(1), Code of Criminal Procedure. It is further urged that the opposite party No. 1 having remained absent on the date fixed for hearing the learned Magistrate had no other alternative but to pass the final order under Section 145, Code of Criminal Procedure on the strength of the materials available on the record.;


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