Braja Sundar Bhutia and Another vs Lingaraj Routray

A.S. Naidu, J.—This Criminal Misc. Case has been filed invoking inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure inter alia challenging the confirming order of the 2nd Addl. Sessions Judge, Bhubaneswar in Crl. Revision No. 1/4 of 2000/1999.

The Petitioners as first party members had initiated the proceeding u/s 144 Code of Criminal Procedure before the Sub-divisional Magistrate, Bhubaneswar, with a prayer to declare their possession in respect of the disputed property and to restrain the present opposite party (second party in the said Crl. Misc. Case) from creating any disturbance thereon which was registered as Crl. Misc. Case No. 586 of 1986. According to the Petitioners the property in dispute was the exclusive property of one Srikantha Rao and that he had executed a Will on 22nd July, 1977 bequeathing the said entire property in favour of the Petitioners and the Petitioners and their family members had been staying in the house situated on the land in dispute. While matter stood thus, on 8th of July, 1986, the second party with the help of some Goondas uprooted the green fence from the disputed land and took over possession thereof. Though an FIR was lodged in that regard, as police did not take any action a proceeding u/s 144 Code of Criminal Procedure was initiated before the SDM which was subsequently converted to one u/s 145 Code of Criminal Procedure.

On receiving notice, the second party appeared before the SDM and filed his written statement inter alia taking the stand that aforesaid Srikantha Rao, the original owner of the disputed property, had executed a registered Will on 26th July, 1978 in his favour and he (second party) had initiated a probate proceeding, vide Misc. Case No. 12/8 of 1979, before the then Subordinate Judge, Bhubaneswar and got the Will probated. By virtue of the said probate the second party became the rightful owner of the disputed property, was in possession thereof and was paying land revenue in respect thereof and that the first party members had no right, title, interest or possession over the same.

The SDM by a reasoned order declared possession of the second party over the disputed property. Being aggrieved by that order the Petitioners preferred Criminal Revision, which was numbered as Crl. Rev. No. 1/4 of 2000/1999 before the 2nd Addl. Sessions Judge, Bhubaneswar. The stand taken before the revisional Court was that the second party in course of hearing without knowledge of the Counsel for the first party had filed certain documents before the SDM and had taken return thereof after delivery of the orders. Thus there was no opportunity for the first party members to see the same and meet the contentions raised by the second party. It was further submitted that the said documents produced before the SDM by the second party were all forged ones and the SDM acted illegally and with material irregularity in relying upon the aid documents without affording opportunity to the Petitioners to peruse the same. After receiving notice, the second party appeared before the revisional Court and filed all the documents he relied upon before the SJM. The revisional Court after perusing the order-sheets and on being satisfied that enough opportunity had not been given to the first party members, set aside the order of the SDM and remanded the case to the latter for fresh disposal. The documents filed in the revisional Court were also transmitted to the Court of the SDM. After such remand, the case was again taken up for hearing by the SDM and the first party-Petitioners were afforded all opportunity to peruse the documents and make their submissions. The first party-Petitioners took the stand that the order of the Probate Court had not attained finality as a petition had been filed by them to revoke the said order. It was further submitted that the documents filed by the second party were not genuine and could not be relied upon. The SDM relying upon the report of an Amin who had visited the spot, in connection with Objection Case No. 9341/501, and other materials available besides the evidence, both oral and documentary, held that the second party was in possession of the disputed land on the date of the preliminary order and therefore directed that he should retain possession of the disputed land until otherwise evicted therefrom through proper course of law. Being aggrieved by the said order of the SDM, the Petitioners once again approached the revisional Court by filing Cri. Rev. No. 1/4 of 2000/1999. The said revision was heard by the 2nd Addl. Sessions Judge, Bhubaneswar who examined the evidence both oral and documentary in extenso and arrived at the conclusion that the SDM had not committed any irregularity or illegality and refused to interfere with the impugned order. The Petitioners, circumventing the bar imposed u/s 397(3) Code of Criminal Procedure, has filed the present CRMC invoking inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure.

Mr. Mohanta, learned Counsel for the Petitioners, strenuously submitted that the SDM had acted illegally and with material irregularity in relying upon the documents produced before him by the second party though all those documents were forged ones. He further submitted that as the matter is still sub judice before a Civil Court, the SDM ought to have dismissed the proceeding u/s 145 Code of Criminal Procedure. It is also submitted that the particulars of the disputed land had not been reflected in the initial order and on the said ground alone the order should be quashed.

All the submissions of Mr. Mohanta are repudiated by Mr. Panigrahi, appearing for the second party. According to him the documents filed by the second party before the Revisional Court had been transmitted to the SDM and before the SDM oral and evidence was adduced by the parties and the said documents had been duly exhibited in consonance with the provisions of the Evidence Act. The first party-Petitioners cross-examined the witnesses examined on behalf of the second party at length, but in vain. Mr. Panigrahi further submitted that in course of the proceeding before the SDM, an Amin who had been deputed to conduct local inquiry with regard to the disputed land submitted his report indicating possession of the second party over the said land. Relying upon the R.O.R. (Ext. D), the probate order and other materials, the SDM rightly came to the conclusion that the second party was the owner of the disputed property appertaining to Sabik Khata No. 159, plot No. 279 having an area of Ac.0.320 dec. corresponding to Hal Settlement Khata No. 584, plot No. 1590 of Mouza Jagamara, P.S. Khandagiri. He also forcefully submitted that the description of the disputed land was specifically mentioned in the preliminary order of the SDM and, as such, no illegality or irregularity had been committed by the SDM. According to Mr. Panigrahi the present CRMC is not maintainable in law in view of the specific bar u/s 397(3) Code of Criminal Procedure and it is fit case where the CRMC should be dismissed in limine.

I have heard learned Counsel for the parties at length. In consonance with Section 397(3), a second revision at the instance of a party who had preferred revision against the same order before the sessions Court is not maintainable. Law is also well settled that inherent jurisdiction u/s 482 Code of Criminal Procedure should not be invoked or exercised circumventing the express bar in the said Code, except in rare and exceptional cases, where the Court comes to the conclusion that gross illegality had been committed by a Court thereby causing miscarriage of justice. In other words, inherent jurisdiction of the High Court can be exercised sparingly and only when the order impugned is perverse and/or palpably illegal (See Iswar Chandra Naik Vs. Smt. Allahadini Sahu (Naik) and Another, ).

Examining the case at hand in the touch-stone of the aforesaid legal position, this Court finds that the SDM committed no error apparent on the face of the record. Relying upon the evidence, both oral and documentary, and the report of the Amin on local inquiry, the SDM arrived at the conclusion that the second party was in physical possession of the disputed property. That apart, it appears that a registered Will had been executed in favour of the second party by the original owner of the disputed property at a later date than the Will alleged to have been executed in favour of the first party-Petitioners.

Law is well settled that the last Will of an executant precedes the earlier. That apart, the Will executed in favour of the second party had been duly probated. Though it is alleged that a proceeding for cancellation of the said Will is pending, yet till the probate order is revoked the same holds the field. The revisional Court also examined the materials and confirmed the order as to possession which is a finding of fact.

In view of the aforesaid discussion, I find that the Courts below have not committed any illegality and the impugned order of the revisional Court is neither perverse nor the conclusions arrived at by the SDM or the conclusion of the revisional Court suffer from any gross illegality. The orders of the Courts below do not cause any miscarriage of justice, inasmuch as it is open to the Petitioners to approach the competent civil Court for declaration of their right, title and interest and for eviction of the second party as has been observed by the SDM. I am, therefore, not inclined to entertain this CRMC and dismiss the same. Parties shall bear their respective costs.