JUDGMENT
P.K. Tripathy, J.
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 Code’).
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 Crl. 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 proceeding) their possession was ultimately declared by the decision of this Court in Crl. Revision No. 297/83 which has been reported in 1986 (II) OLR 203 (Bhama Meher v. Kausalya Meher and Ors.,). 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 Section 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/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 Court’s 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 (S/R) 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 Magistrates 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.
4. Mr. H. S. Mishra, learned counsel appearing for the petitioner laid much stress on the factum of delivery of possession and challenged the conclusion arrived at by the learned Executive Magistrate on the report of the Process Server as illegal, erroneous and unsustainable. He further stated that the claim of the petitioner was not properly viewed and in the absence of any justifiable reason the proceeding was illegally dropped. Mr. N. C. Pati, learned counsel appearing for the opposite parties, on the other hand, argued that when in the previous litigation under Section 145 of the Code factum of possession has been declared in favour of the opposite parties, in the absence of proof of delivery of possession which was in fact not effected, the petitioner’s possession cannot be disturbed by bringing repeated petition under Section 145 of the Code. He further argued that when in the aforesaid title suit decree has been passed for recovery of possession and that decree is under challenge in title appeal filed by the opposite party No. 1, continuance of the present proceeding under Section 145 of the Code is not necessary. In that respect, he has relied upon the cases of Ram Sumer Puri Mohant v. State of U.P. and Ors., AIR 1985 SC 472, Sashimani Dibya v. Bisnhupriya Mohapatra and Ors., 1991 (I) OLR 218 Subala Dehury v. Rupakar Dehury and Anr., 1986 (I) OLR 154 and Bhama Meher (supra).
5. It may be indicated here that the extent of applicability of the ratio in the case of Ram Sumer Puri Mahanta (supra) was considered by this Court in the case of Subala Dehury (supra) and it was held that the apex Court has not propounded it as an universal principle of law that on mere pendency of a civil litigation between the parties relating to the same subject-matter of dispute jurisdiction of an Executive Magistrate to take action under Section 145 of the Code is debarred. It was held therein that in the absence of any interim arrangement made by the Civil Court and if there exists apprehension of breach of peace relating to the subject-matter of dispute, the Executive Magistrate is not precluded from taking recourse to Section 145, Similar view has been expressed by this Court in the case of Charan Naik and Ors. v. Kirtan Mohanty (1998) 14 OCR 294. In the case of Sashimani Divya this Court held that when a civil litigation is pending for property wherein the question of possession is involved and has been adjudicated, intimation of a parallel proceeding under Section 145 of the Code is not justified and in that respect the Executive Magistrate shall give due respect to the recent decision of the Civil Court or Revenue Court regarding title and possession of the disputed land between the parties. It has further been held therein that after the decision of the Civil Court or the Revenue Court/authority if dispute again arises between the parties instead of initiating a proceeding under Section 145 of the Code, the Executive Magistrate should initiate a proceeding under Section 107 to prevent the apprehension of breach of peace.
6. The principle of law as propounded above is not disputed by the petitioner, but his contention is that his problem is different inasmuch as after obtaining a decree for recovery of possession he has taken delivery of possession and without deciding that fact on merit and in accordance with law and procedure as in Section 145(4) of the Code learned Magistrate illegally dropped the proceeding without making any enquiry.
7. The undisputed fact situation so far as the present case is concerned are that –
(i) the opposite party members succeeded in the consolidation proceeding and also in the previously instituted proceeding under Section 145 and their possession was declared by both the forums ;
(ii) thereafter the petitioner filed T.S. 20 of 1987 in which petitioner’s title was declared and prayer for recovery of possession was granted in the decree;
(iii) petitioner claims his possession on the ground that writ for delivery of possession issued in Execution Case No. 43/92 was executed by giving delivery of possession of the case land in his favour, and alleging disturbance by the opposite party member; and
(iv) on the other hand, the opposite party members dispute the factum of execution of writ of delivery of possession in favour of the petitioner, grant of stay order in the title appeal against execution of the decree and claim of possession over the property on the basis of the consolidation records and declaration of possession in their favour in the previous proceedings under Section 145 of the Code.
8. The above sequence of facts thus go to indicate that the crux of the matters lies in believing or disbelieving the plea of the petitioner as to whether he has taken delivery of possession. If he has taken delivery of the possession of the property, it being on the basis of the Civil Court decree he can maintain that possession until the decree is set aside and possession is recovered. On the other hand, if the opposite party members will prove that delivery of possession was not effected in that execution proceeding, then in view of the previous declarations of possession in their favour by both the consolidation authorities and in the 145 proceeding together with the stay order passed by the District Judge in the title appeal, their possession is to be protected until they are evicted in due process of law.
9. Under such circumstances, learned Magistrate should not have dropped the proceeding in the manner he has done it. Such order of learned Executive Magistrate is not legally sustainable in the existing facts and circumstances. Of course, the fact scenario may take a different turn in the grant of any order being passed in the appellate Court in that title appeal for interim protection of the property either by appointment of receiver or by injuncting either of the parties not to disturb the possession of the other. In such event the above cited ratio shall have full applicability to take away the jurisdiction of the Executive Magistrate to decide the factum of possession. He is, therefore, directed to take up the enquiry allowing the parties to adduce evidence in support of their respective pleas (as noted above) and to dispose of the proceeding in accordance with law.
10. As discussed above, the impugned order being legally not sustainable, the same is set aside and the case is remitted back to the Court of the learned Executive Magistrate. Learned Executive Magistrate is directed to take up the enquiry and to complete the same within two months from the date of receipt of L.C.R. and a copy of this order. To save the proceeding from further delay, both the parties are directed to appear in the Court of Executive Magistrate on 21.9.1998 and the Magistrate shall thereafter indicate the date on which the enquiry shall be taken up. If any of the parties shall default in his appearance he shall not be entitled to further notice from that Court.
The criminal revision is accordingly allowed.