DAITARI SWAIN Vs. SUDHIR KUMAR MOHAPATRA
LAWS(ORI)-1978-9-11
HIGH COURT OF ORISSA
Decided on September 22,1978

Daitari Swain Appellant
VERSUS
Sudhir Kumar Mohapatra Respondents

JUDGEMENT

J.K. Mohanty, J. - (1.) THE first party, Sudhir Kumar Mohapatra (opposite party in this revision), filed a petition before the City Magistrate on 29 -8 -1970 alleging that he was running a sweet -meat shop on a piece of railway land measuring 215 square feet in Station Bazar, Cuttack and that the second party, Daitari Swain {Petitioner in this revision with the help of hooligans, was out to evict him forcibly from the said sweet -meat shop and trying to occupy the same. As there was likelihood of serious clash and imminent breach of peace, the first party prayed for passing an ex parte order under Section 141(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land. The learned Magistrate, after being satisfied, passed an ex parte order under Section 144(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land and directed the second party to appear in his Court on 14 -9 -1970 and to show cause as to why the above order should not be made absolute against him. The second party appeared on 14 -9 -1970 and raised the question of maintainability of the aforesaid order. On 17 -9 -1910 the learned Magistrate after hearing both parties converted the proceeding to one under Section 145, Code of Criminal Procedure and attached the disputed land and asked the parties to file their written statements, affidavits and documents by the next date. The relevant portion of the order is quoted below: Since both parties claim exclusive possession and there is serious apprehension of breach of peace, the proceeding is converted to one under Section 145, Code of Criminal Procedure. Attach the land symbolically. Notice the parties to file under section, affidavits and documents by the next date. Thereafter the parties filed their written statements, affidavits and documents and after hearing the parties, the learned Magistrate found that the first party was in possession of the disputed land and he had been dispossessed forcibly by the second party within two months next before the preliminary order and directed that the first party be restored to his possession until evicted therefrom in due course of law. Against the said order, the second party filed Criminal Revision No. 15 of 1973 before the Additional District Magistrate, Cuttack which was also dismissed on 7 -7 -1973. Against that, the second party -petitioner has come to this Court with the present revision.
(2.) THE case of the first party is that the disputed land belongs to the South Eastern Railway. The second party wanted to take lease of the same and being in need of money approached the first party to finance him to which the first party agreed. On 30 -9 -1969 there was an agreement between the parties that the first party would pay to the second party the security deposit and other charges, rent at the rate of Rs. 30/ - per month for use and occupation of the land and shall make construction at his cost and carryon business on the said house and the second party shall not evict him from the land. Accordingly, the first party advanced money to the second party, paid rent at the rate of Rs. 301 - per month for a year in advance, constructed house on the disputed land, run his sweet -meat shop and remained in peaceful possession Without any disturbance. His further case is that he closed his shop for the Orissa Bund Hartal on 27 -7 -1970 and went to his village and taking advantage of his absence the second party forcibly and wrongfully entered into his shop. So he was compelled to file a Petition before the City Magistrate on 5 -8 -1970 which was sent to G.R.P.S. for enquiry and report. As the police delayed the matter, he filed a petition under Section 144, Code of Criminal Procedure which was subsequently converted into a proceeding under Section 145, Code of Criminal Procedure as aforesaid. The case of the second party is that he is in possession of the disputed land as he has taken lease from the railway and is paying due rent for the possession and occupation of the land in dispute.
(3.) IN this revision the following points have been raised by the learned Counsel appearing on behalf of the second party Petitioner. (1) That in this case no formal preliminary order under Section 145, Code of Criminal Procedure has been drawn up; (2) That a copy of the preliminary order has not been served on the parties and no copy of the order has been published by being affixed to some conspicuous place at or near the subject of dispute as required under Sub -section (3) of Section 145, Criminal Procedure Code; (3) That the affidavits have not been considered; and (4) That for the purpose of finding out possession the learned Magistrate has examined the police officer and relied on the evidence of the police officer in arriving at the question of possession which is illegal.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.