FAGU MEHER Vs. BHAMA MEHER

JUDGEMENT

(1.) In this revision application the 1st party in Criminal Misc. Case No. 68 of 1995 of the Court of Executive Magistrate, Sambalpur has challenged the order dated 28-5-1996 by which learned Executive Magistrate has dropped the proceeding under Section 145 of the Criminal Procedure Code (in short the CodeT).

(2.) It reveals from the argument advanced and the statements made in the record that there are series of litigations between the parties. A brief sketch of the same will suffice the purpose. This dispute relates to an area of Ac. 2.60 decimals of land recorded in M.S. Khata No. 58 vide plot No. 35. The predecessor-in-interest of the petitioner initiated Cr1. Misc. Case No. 126/82 under Section 145 of the Code in the Court of Executive Magistrate, Sambalpur with respect to Ac. 0.95 decimals of land from out of the aforesaid Ac. 2.60 decimals of land. The decisions of the consolidation authority being in favour of the opposite parties (second party in both the 145 proceedings) their possession was ultimately declared by the decision of this Court in Cr1. Revision No. 297/83 which has been reported in Bhama Meher v. Kausalya Meher and others1. In that decision it was observed that consolidation authority being the substitute of the Civil Court and such consolidation authority having decided the title in favour of the second party members and delivered the possession of the disputed land to the said second party members the Magistrate acting under Sec. 145 of the Code was bound to respect that finding. Thereafter, the unsuccessful 1st party filed Title Suit No. 20/87 in the Court of Subordinate Judge (Civil Judge. Sr. Division, Sambalpur) which was decreed in favour of the 1st party I petitioner for recovery of possession vide judgment and decree dt. 30-12-1992. According to the petitioner, he instituted Execution Case No. 43/92 and took delivery of possession of the land from Courts bailiff. Since there was demand of bribe by the said process server (bailiff) a vigilance trap case was initiated in which that writ of delivery of possession was seized for which the service return (SIR) could not be affirmed before the Nazir. According to the petitioner, after taking delivery of possession he is in peaceful possession, but the second party members tried to disturb in his possession giving rise to apprehension of breach of peace and accordingly he initiated the present proceeding (Crl.) Misc. Case No. 60/95) under Section 145 of the Code. The case of the second party/opp. Party members is that they are the rightful owner in possession of the property after receiving it from the predecessors in title and that their title and possession had been confirmed all along until the decree in the aforesaid title suit which is under challenge in a title appeal filed by the opposite parties and the further proceeding of Execution Case No. 43/92 and the factum of delivery of possession has been stayed by the appellate Court. They have further stated that the petitioner never took delivery of possession and such claim has been made only with a view to create disturbance in the possession of the opposite party members over the case land.

(3.) After appearance and filing of the written statements and documents by both the parties learned Executive Magistrate vide the impugned order has dropped the proceeding under Sec. 145 of the Code, inter alia, by the ground that the execution of writ of delivery of possession of the Process Server is not acceptable when it has not been affirmed. He has also stated that since the High Court in the previous occasion declared the possession of the opposite party members the same analogy can be applied to the present dispute for inferring the possession in favour of the opposite party members.