KALI CHARAN GOUDA Vs. BHUBANESWAR MOHARATHA AND ORS.
LAWS(ORI)-1988-8-33
HIGH COURT OF ORISSA
Decided on August 23,1988

Kali Charan Gouda Appellant
VERSUS
Bhubaneswar Moharatha And Ors. Respondents

JUDGEMENT

L. Rath, J. - (1.) THE first party in the 145 Code of Criminal Procedure proceeding is the Petitioner against the revisional order of the First Additional Sessions Judge, Berhampur remanding the case to the Magistrate while setting aside his order directing deputation of an Amin to measure the land and properly demarcate it and thereafter to give the parties opportunities to lead additional evidence and decide the case afresh.
(2.) THE proceeding under Section 145 Code of Criminal Procedure was initiated on a police report. The case of the present Petitioner was that he was in possession and enjoyment of the disputed land since he purchased the same on 27.0.60 by a registered sale deed representing 1/6th share of his co -sharer vendor to whose share the land had fallen on partition. The claim was resisted by the members of the second party opposite parties on various grounds which have since been negatived the main one being that the vendor of the Petitioner was not entitled to sell 1/6th share of the land since in the partition they had been allotted more share than what was due to them on the basis of a partition on equal share basis. The learned Magistrate found the opposite parties as not having been able to establish of their having been allotted and got more land in the partition and also found possession of the land in the Petitioner in whose favour he had decided the proceeding. In revision it was submitted before the learned Additional Sessions Judge that the Magistrate had committed an error in dismissing the petition for local inspection made by the opposite parties as also refusing to depute an Amin for measurement. The Additional Sessions Judge accepted such a plea and further observed that since the Magistrate had found a major portion of the disputed plot to be in possession of the Petitioner without deciding which major portion was actually in his possession, it needed a decision afresh and, hence made the order as aforesaid.
(3.) MR . B.B. Ratho, learned Counsel appearing for the Petitioner, has urged that the direction of the learned Additional Sessions Judge to be one not contemplated in law in as much as in the enquiry under Section 145 Code of Criminal Procedure there is no provision for deputing an Amin to make a measurement. In the facts and circumstances of the case, the objection taken by Mr. Ratho is unexceptionable. There is no direct provision in Section 145 Code of Criminal Procedure authorising a Magistrate to depute an Amin for measurement of the disputed land, but Sub -section (4) of Section 145 authorises a Magistrate to pursue the statements put in, hear the parties receive such evidence as being produced by them and take such further evidence, if any, as he thinks necessary to decide which of the parties was in possession, subject to exceptions enumerated, on the date of the preliminary order. Though it is urged by Mr. Ratho that power for taking such further evidence as he thinks necessary would not authorise a Magistrate to send an Amin for measurement of the land, yet I do not think it is necessary to decide the question in this case since the matter can be disposed of otherwise. As is apparent from the order of the learned Additional Sessions Judge, the need for deputing an Amin measurement of the land arose out of an observation of the Magistrate that the major portion of the disputed plot was in possession of the Petitioner and that since the Magistrate did not decide as to which major portion the order related to, deputation of an Amin for measurement of the land would help to arrive at a conclusion in that regard. On the first hand, if the learned Additional Sessions Judge came to the conclusion that the Magistrate was not able to decide the respective possession of the parties inspite of the fact that they had led evidence regarding the same, it would not be proper for the Magistrate to resort to a procedure of deputation of an Amin for measurement of the land since his report would hardly be Indicative of the possession of the respective parties and the proper course would have been to make an interim arrangement for the house and direct the parties to resolve the dispute by a competent civil court and on the other hand, the opinion of the learned Additional Sessions Judge of the Magistrate having observed that the Petitioner was in possession of major portion of the disputed land does not seem to be correct. What was stated by the learned Magistrate was that the major portion of the site at the disputed spot is found to be in possession of the first party by purchase in his name and in the name of his father -in -law, Dandapani Moharatha. Almost immediately previous to it, he found the first party member i.e. the Petitioner to be in possession and enjoyment of all the properties of Dandapani Moharatha end In the and, he summed up his conclusions that they had purchased the house site of Sahadev Mohapath, Rajib Moharath, Lingaraj Mohaparath and Chakrapani Moharatha and the evidence of possession of the disputed land of P.W. 1 had been corroborated by P.W. 2 which contrasted to the fact that the opposite parties had even failed to mention the manner as to how they were possessing the disputed site. From this it does not appear that the Magistrate has made any observation as the Petitioner being only in possession of a major portions of the disputed land, Even if it is taken that he did make much an observations, it was plainly nothing but was of words which created confusion as is apparent from the observation made by him proceeding those words and also succeeding them, Since as such there was no finding of the Magistrate of the Petitioner being not in possession of the disputed land but only of a major portion of it, and on the contrary he came to the conclusion of the Petitioner being in possession of the disputed land, there is no occasion to depute an Amin for measurement of the land or allow the parties to adduce further evidence on it.;


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