Orissa High Court
T. Esseswar Rao Patra vs Rusava Mohanty And Anr. on 29 March, 2000
Equivalent citations: 2001CRILJ2774, 2000(II)OLR11
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard learned counsel for both the parties.
2. The 2nd party member in Misc. Case No. 55 of 1996 under Section 145. Cr.P.C. of the Court of Executive Magistrate. Phulbani has preferred this revision challenging the order dated 31.3.1997 passed by that Court. As it reveals from the certified copy of the impugned judgment and the contention advanced by the parties that the proceeding was initiated under Section 144, Cr.P.C. and thereafter on the prayer of both the parties the same was converted to a proceeding under Section 145. The disputed case land comprises of an area of HC.0.693 vide plot No. 242/2045 of Khata No. 122/12 in Mouza Dadapaju. The 1st party claimed title and possession of that land stating that it is his ancestral property and he is in continuous possession of the same all throughout. The 2nd party advanced Decided on 29th March. 2000. the contention of title and possession by stating that one Gunara Konhar (witness for the 2nd party) being an Adivasi was settled with the disputed case land in Lease Case No. 5/83 and he obtained permission from the S.D.O., Kandhamal at Phulbani in 1984 (vide Misc. Case No. 69/84) and transferred the case land in favour of the 2nd party member executing registered sale deeds and that the land has also been mutated in the name of the 2nd party in Mutation Case No. 356/86 and he is paying rent regularly. Both the parties adduced oral evidence and the 2nd party adduced the aforesaid documents in evidence in support of his plea of title and possession. Learned Executive Magistrate found the case of the 2nd party to be doubtful as he entertained doubt about the conduct of the S.D.O. in settling the suit land in favour of Gunara Konhar and thereafter granting permission to him to sell the same to the 2nd party and also the manner in which the Tahsildar, Kandhamal allowed the mutation. Thus learned Executive Magistrate did not accept those documents and so far as the oral evidence was concerned he was unable to determine from the same as to which party was in possession of the case land by the date of the preliminary order. Thus, he directed the parties to approach the Civil Court for a decision on the question of title and possession and kept the disputed property under attachment and custody of the receiver until the decision of the Civil Court. That order has been challenged in this revision by the 2nd party.
3. Learned counsel for the petitioner argues that when the 2nd party has proved his factum of possession through both the oral and documentary evidence the Executive Magistrate was not competent enough to question legality of the order passed by the S.D.O. and the Tahsildar inasmuch as he has no right or authority to interfere with that order. In the absence of any circumstance appearing in the evidence to cast a doubt on the genuineness of the aforesaid orders of the revenue authorities the Executive Magistrate was absolutely wrong in casting aspersion and doubting the conduct of the S.D.O. who is also the S.D.M. and his superior authority. He further argues that the evidence on record are sufficient enough to declare possession of the 2nd party. Accordingly, he argues to set aside the impugned judgment. Learned counsel for the petitioner further states that in a suo motu revision the Addl. District Magistrate, Kandhamal on 23.11.1996 has passed order upholding the validity of the order of settlement as per the order of the S.D.O.
4. Learned counsel appearing for the 1st party/opp. party No. 1, on the other hand, argues that keeping in view the manner in which the land was settled as against the law and the public policy the Executive Magistrate rightly doubted genuineness of the aforesaid order of the S.D.O. and the Tahsildar. He further argues that the aforesaid documents ipso facto do not confer actual possession on the settlee or the 2nd party. He further states that he has received instruction and information that, in the meantime, the 1st party has issued a notice under Section 80. C.P.C. to the State of Orissa and a suit is well contemplated in the near future relating to the disputed property.
5. After consideration of the aforesaid argument this Court finds that the Executive Magistrate has over stepped the jurisdiction vested in him in a proceeding under Section 145, Cr.P.C. He should have remained confined to assess the evidentiary value of the oral and documentary evidence produced before him and should have decided the factum of possession in a positive manner in favour of either of the parties on proper evaluation of evidence. When no fact or evidence was produced before him to doubt genuineness or correctness of the lease granted in favour of Gunara Konh or regarding any foulplay in granting the permission to sale learned Executive Magistrate should not have rejected such evidence merely on the basis of surmises and presumption that there is something fishy about the whole matter relating to lease and permission granted for sale. He has no jurisdiction to declare a document void or valid though he has jurisdiction to refuse to consider a void or invalid document. Therefore, while setting aside the impugned judgment dt. 31.3.1997 this Court directs the Executive Magistrate to hear the parties afresh and to dispose of the case within a period of three months from the date of receipt of a copy of this order. The parties need not be noticed afresh and they are directed to appear in that Court by 24th April, 2000 and the 2nd party/petitioner shall produce a certified copy of this order in that Court. On that date itself both the parties if so like may file additional documentary evidence, if any and thereafter the Executive Magistrate shall grant opportunity to each of the parties, one after the other to file rebuttal evidence, if any, within a period of fifteen days and learned Magistrate shall receive/accept such evidence in accordance with law and procedure and decide the case on merit on proper assessment of evidence on record. As stated by learned counsel for the 1st party/opp. party No. 1 if in the meantime a civil suit shall be instituted and any order relating to interim protection of property shall be passed by the Civil Court after service of due notice on the 2nd party or after hearing both the parties then learned Executive Magistrate shall have due regard to that order and notwithstanding the aforesaid direction of this Court regarding further evidence and fresh hearing of argument, he shall pass appropriate order whether or not the proceeding shall be continued. If it shall be decided to continue the proceeding then the same shall be decided as per the aforesaid direction. Mere institution/pendency of a civil suit being not sufficient to oust the jurisdiction under Section 145 Cr.P.C, therefore unless there shall be some order from the Civil Court, in the manner indicated above learned Magistrate shall not drop the I proceeding. At any event he is to pass an order after affording opportunity 1 of hearing to both the parties.
6. Thus, the impugned order is set aside and the crl. revision is allowed and remanded accordingly.