IN THE COURT OF 2ND ADDL. DISTRICT AND SESSIONS JUDGE, PURI.
P r e s e n t: Sri A.R. Jena, M.Sc., LL.B.,
2nd Addl. District and Sessions Judge, Puri.
Crl. Revision No. 7 of 2012
(Arising out of order dated 31.01.2012 passed by the learned SDM, Puri in Crl. Misc. Case No. 664 of 2011)
Chandra Sekhar Sinha, aged about 56 yrs.,
S/o.-Bhima Chandra Sinha,
At.-Heragohirisahi, Darji Pokhari Chhak,
P.S.Kumbharapada, Dist : Puri.
Biren Kumar Nayak, aged 36 yrs.,
P.S.Kumbharpada, Dist : Puri.
… Opp. party
For the petitioner : Sri A.J.M. Naidu, Adv.,Puri.
For the Opp.party : Sri K. P. Mishra, Adv.,Puri.
Date of Argument : 25.04.2022
Date of Order : 09.05.2022
O R D E R.
In this revision, the petitioner has assailed the order dated 31.01.2012 passed by the learned SubDivisional Magistrate, Puri in Crl. Misc. Case No.664 of 2011 in a proceeding u/s 144 Cr.P.C, thereby directing the demarcation of the entire plot no.164 of mouza Jhadeswari Sahi under Kumbharapada P.S.
2. The fact of the case can be briefly described as follows: –
Sabik plot no.581 under Sabik khata no.52 of mouza Jhadeswari Sahi, comprising an area of Ac.0.073 dec. originally stood recorded in the name of one Adikanda Das. He transferred Ac.0.038 dec. to Arakhita Patra and Khandeswar Patra from its northern side. Then his son Khetranarayan Das and others sold further Ac.0.005 ½ dec. to the same Arakhita and Khandeswar. So, the family of Arakhita left with Ac.0.029 ½ dec. from Sabik plot no. 581. Arakhita had four sons; Khetranarayan, Purna, Rama and Laxmidhar. Khetranarayan, Rama and Laxmidhar further transferred Ac.0.0221/8 dec. to one Rambhabati Pradhan leaving behind only Ac.0.0073/8 dec. which belonged to the share of Purna. This piece of land is the disputed property. It corresponds to a portion of hal plot no.164 towards the south.
In the mean time, one Yudhistira Jena purchased the disputed property through auction sale in execution of a decree, which he obtained against Purna Chandra Das. But, Yudhistira could not take the sale certificate in time and the same was destroyed. So, he instituted a suit against Purna Chandra Das for declaration of title and delivery of possession which was decreed in his favour and possession was delivered to him through execution. The present petitioner purchased that property from Yudhistira. But, he could not mutate the land in his name during settlement operation. So, he instituted a suit bearing no. T.S.41/337 of 1998-93 against Nalini Das and Prafulla Das, the daughter-inlaw and son of Purna Das, who in the mean time had re-purchased the Ac.0.0221/8 dec. from Rambhabati Pradhan. That suit was decreed in favour of the petitioner. Being aggrieved, Nalini and Prafulla preferred appeal vide T.A. No.13/59 of 2003-00. The First Appellate Court dismissed the appeal and confirmed the Judgment of the Trial Court. No second appeal was preferred. Thereafter, Nalini made a prayer before Tahasildar, Puri for demarcation of the entire plot no.164, vide demarcation case no.46 of 2005. Being noticed, the present petitioner filed objection and submitted the Judgments of the Civil Courts. So, Tahasildar, Puri vide order dated 22.06.2005 excluded the disputed land from the purview of demarcation and directed for demarcation of the remaining portion of plot no.164. But, Nalini did not agree for such demarcation and so the Amin returned without demarcating the land.
This order of Tahasildar was not challenged in any higher forum. However, Nalini and Prafulla cunningly brought a proceeding u/s.144 of Cr.P.C. before SDM, Puri and got an order for demarcation of the entire land of plot no.164. Against that order, the present petitioner preferred revision vide Crl. Rev. No.7/43 of 2007-06. The learned 1st A.D.J., Puri, though directed for the demarcation of the entire plot, but observed that while measuring the plot, the construction of the wall of the petitioner should be given due regards. It was directed that such demarcation should be completed within one month of the appearance of the parties. It is stated that thereafter, Nalini and Prafulla did not take any interest in demarcating the land. In the meantime, the present OP claiming to have purchased Ac.0.024 dec. of land out of plot no.164 from Nalini again filed a demarcation case before Tahasildar Puri vide demarcation case no.70 of 2011. In the guise of the said demarcation case, the O.P. tried to dispossess the petitioner from the disputed property. So, the petitioner instituted Crl. Misc. case No.664 of 2011, u/s.144 of Cr.P.C. The learned SDM, Puri, though observed that the right, title and possession of the petitioner over the disputed property has been affirmed by the trial court as well as the first appellate court, but ultimately directed the demarcation of the entire plot no.164. That order has been impugned in this revision.
3. The learned counsel appearing for the petitioner submitted that the title and possession of the petitioner over the southern portion Ac.0.0073/8 dec. of hal plot no.164 has been put to rest by the Addl. Civil Judge, (Sr. Divn.), Puri in T.S. No.41/337 of 1998-93 and by the 1st Addl. District Judge, Puri in T.A. No.13/59 of 2003-00. It is further submitted that during pendency of the title appeal, Nalini and Prafulla, the vendors of the present O.P. had filed a petition u/o.26 R.9 of
C.P.C. for demarcation of the disputed property as a piece of additional evidence. But that prayer was also rejected by the 1st Appellate Court vide order no.27 dated 04.02.2003. But in spite of that, the direction of the SDM, Puri for demarcation of the entire plot no.164, amounts to sitting in revision over the decree of the Trial Court as well as the 1st Appellate Court which is beyond the jurisdiction of the SDM, Puri. Thus it is contended that the order of the learned SDM, Puri is arbitrary and in excess of his jurisdiction which needs to be set-aside.
4. On the other hand, the learned counsel appearing for the O.P. contended that he is not disputing the right and title of the petitioner over Ac.0.0073/8 dec. of land. But, this is a simple case of boundary dispute. The petitioner has managed to construct the boundary wall beyond his purchased land encroaching the land of the O.P. and unless the entire land is demarcated the dispute cannot be resolved which may lead to law and order situation in future. Thus, he supported the order passed by the SDM, Puri.
5. Before going into the merit, it is apt to decide whether the revision is maintainable after lapse of sixty days, because an order u/s.144 of Cr.P.C. automatically looses its force after two months. In Taturam Sahoo vrs. State of Orissa AIR 1953, Ori P-96, as well as in Niranjan Sahoo and Ors. Vrs. Keonjhara Municipality represented by its Chairman, 37( 1971) CLT 857, the Hon’ble High Court held that even after the expiry of the order due to efflux of time, in a fit case, the Revisional Court can interfere with the order passed by the Executive Magistrate u/s.144 of Cr.P.C., if the Executive Magistrate acted illegally and in excess of its jurisdiction. A similar view was taken in Surendra Rout and Ors. Vrs. Executive Magistrate, Cuttack, 2010 (1) OLR-19. Thus law is well settled that even after the expiry of the order due to efflux of time, in a fit case, the Revisional Court can interfere with the order passed u/s.144 of Cr.P.C. if the Executive Magistrate acted illegally and in excess of its jurisdiction.
6. Section 144 of Cr.P.C provides power to the Executive Magistrate to issue order in urgent cases of nuisance or apprehended danger, if in the opinion of the Executive Magistrate, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Such Magistrate may, by a written order stating the martial facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management. The purpose is to prevent danger to human life, health or safety or peace and tranquility of the members of the public.
07. On perusal of the materials available on record, it becomes very clear that the disputed property measuring Ac.0.0073/8 dec. under hal khata no.164 was the subject matter of dispute in T.S. No.41/337 of 1998-93. In that suit, one of the issue was “whether the description of the suit property as mentioned in the plaint was correct.” The learned Addl. Civil Judge (Sr. Divn), Puri after considering all the materials placed before him came to hold that the suit property can be adequately identified. That decree was challenged in T.A. 13/59 of 2003-00 which was dismissed. Both the Trial court and the First Appellate Court came to the conclusion that plot no.165, where the residential house of the petitioner stands, lies to the adjoining south of plot no.164 and the disputed property measuring Ac.0.0073/8 dec. exist just to the north of plot no.165 i.e., on the southern portion of plot no.164. It was further held that there is a boundary on the northern side of this disputed land beyond which the purchased land of the O.P. exists. It is pertinent to mention here that the defendants in the suit had made a counter claim for closure of the windows opened towards their land. The learned Trial Court rejected the same holding that the residential house of the petitioner is over plot no.165 and the disputed property separates his residential house with the land of the defendants.
Thus it was made clear that the disputed property exists in between the residential plot of the petitioner and the purchased land of the O.P. More importantly, the prayer for demarcation of the land u/o.26 R.9 of C.P.C. was rejected by the 1st Appellate Court. No where the defendants took a plea that the petitioner has constructed the boundary wall beyond his purchased land encroaching their land. The vendors of the present O.P. did not choose to challenge the decree in second appeal. The order of the Tahasildar Puri made in demarcation case no.46 of 2005 was not challenged. Though the learned 1st A.D.J, Puri in Crl. Rev. No.7/43 of 2007-06 had advised for the demarcation of the entire plot with due recognition of the existing wall, but the matter was not pursued by the vendors of the O.P. within the stipulated time. So, in order to get rid of the legal hurdles, they cunningly sold their property to the present O.P. who is again trying to pursue the matter afresh. This way, there will be no end to any civil litigation and a party who got the decree in the lower court as well as in the appellate court will wait for eternity to enjoy the fruit.
Ignoring all the aspects, the learned SDM, Puri directed for demarcation of the entire plot as if he was sitting in revision over the order of the Civil Courts. Therefore, in my opinion, the learned SDM, Puri acted illegally and beyond his jurisdiction. So, his order cannot be sustained in the eye of law.
9. In the result, the Criminal Revision is allowed on contest. Accordingly, the order dated 31.01.2012 passed by the learned SDM, Puri in Crl. Misc. Case No. 664 of 2011 is hereby set aside.
A copy of this order be sent to the learned SDM,Puri for information and necessary action. Pronounced the order in the open Court today this the 9th day of May, 2022, under my hand and seal of the Court.
2 nd Addl. Dist & Sessions
Typed to my dictation and
corrected by me.
2 nd Addl. Dist & Sessions