Jani Dondosena and Others vs Signo Bodamundi and Others

S.K. Ray, J.—This is a single Judge case but it has been referred to the Division Bench by Hon''ble Justice R.N. Misra by his order dated 14-12-1976 in pursuance of the proviso (a) of Rule 1, Chapter III of the High Court Rules. Volume I. Though in the order of reference a question of law has been indicated for decision, nevertheless the whole matter being before us, we heard the learned Counsel for the parties on the entire case.

The second party members in a proceeding u/s 145, Code of Criminal Procedure are the Petitioners. On the basis of a police report dated 24-9-1971 the Magistrate passed a preliminary order u/s 145(1), Code of Criminal Procedure on 22-11-1971. The subject-matter, as appears from the preliminary order, is about five acres of land comprising of 54 plots in villages Badamundi Sahi and Raiguma. This subject of dispute is part of a large tract of unsurveyed land and when during the last settlement operations it was sought to be included in village Raiguma that the dispute started. The first party filed affidavits of five witnesses and examined four witnesses on oath in the Court of the Magistrate even though they had not filed their affidavits. Similarly, the second party filed affidavits of five witnesses and examined two witnesses in Court. Both parties also filed certain documents, alleged to be Cist and Manool receipts in respect of the disputed land granted by the Muthahaad. It appears from the order-sheet that by his order dated 18-12-1972 the Magistrate deputed the Tahasildar-cum-Magistrate, Second Class. Parlakhemundi to make a local enquiry and to submit his report as required u/s 148, Code of Criminal Procedure. The Tahasildar-Magistrate submitted his report on 29-6-1972 including evidence of witnesses examined by him at the spot and also a sketch map of the subject of dispute. It appears from the memo dated 2-12-1974 filed by the members of the first party that the Tahasildar-Magistrate had allotted 20 plots to the Petitioners (second party) and 34 plots to them (first party). The first party made a prayer in the memo that the Court may be pleased to pass orders as per the recommendations of the Tahasildar. Therefore, the first party members relinquished their claim of the entire subject of dispute and confined it to 34 plots. On the basis of that memo itself the Magistrate might have been justified in declaring possession of the second party members with regard to the 20 plots relinquished by the first party. On a perusal of the judgment of the Magistrate it appears that he has completely ignored the report of the Tahasildar, the evidence taken by him, the sketch map prepared by him and the memo filed by the first party opposite parties. Section 148, Code of Criminal Procedure specifically states that the report of the Magistrate deputed under the section may be read as evidence in the case. Thus, the impugned order having been passed without considering the report of the Tahasildar. Magistrate, the evidence collected by him, the sketch map prepared by him and the memo filed by the first party cannot be upheld.

It also appears that both the first party and the second party members have questioned the description of the subject-matter of dispute given in the preliminary order and the notice served on them. The identity of the subject-matter of dispute is, thus, in dispute. In such a case it was incumbent upon the Magistrate to first of all identify the subject-matter of dispute and then proceed to scan the evidence if it related to such disputed land and was credible.

For the aforesaid reasons, we feel that this is a fit case where the matter should be remitted back to the Magistrate who shall, after hearing the counsel for the parties afresh, reconsider the entire evidence on record, such as the report of the Tahasildar, the evidence collected by him, the sketch map prepared by him and the memo filed by the first party and decide the matter in accordance with law. We find that in the last paragraph of his order the Magistrate has declared that the first party is entitled to possession of the scheduled land which is not in strict accordance with the requirements of Section 145, Code of Criminal Procedure. He must render a finding as to which of the parties was in possession or deemed to be in possession of the subject of dispute on the date of the preliminary order. Therefore, he must scan the evidence of possession with regard to the date of the preliminary order. If the Magistrate is unable to decide as to which party was in possession on the date of the preliminary order, he may attach the property and refer the matter to the Civil Court u/s 146, Code of Criminal Procedure While the attachment subsists, he is entitled to appoint a receiver. After receipt of the finding of the Civil Court he will proceed to decide the matter in accordance with law. This course is indicated for the apprisement of the Magistrate who is free to act in any manner he likes provided it is legal.

In the result, the criminal revision is allowed, the impugned order of the Magistrate is set aside and the case is remitted back to him for a fresh disposal in accordance with law in the right of the observations made above. In view of this remand, it is not necessary at present to decide the question of law raised in the order of reference.

Criminal Revision allowed.

P.K. Mohanti, J.

I agree.

Revision allowed.