JUDGMENT
L. Mohapatra, J.
1. The second party members in a proceeding Under Section 145 of the Code of Criminal Procedure have filed this revision against the order dated 25.6.1997 passed by the Executive Magistrate. Dhenkanal declaring possession of the 1st party member, who is the opposite party in this revision.
2. The proceeding Under Section 145, Cr.P.C. was initiated basing on the prosecution report submitted by the O.I.C. of Gandia P.S. The police report disclosed apprehension of breach of peace for possession of land measuring an area of Ac. 0.03 decimal appertaining to plot No. 114/396 under Khata No. 19 of village Natima. After notice to both parties, written statements were filed on behalf of both the parties. The 1 st party, who is the opposite par;ty in this revision in his written statement filed before the learned Magistrate stated that the Sanyasies of Latashram started construction of five rooms over lathe disputed land and the construction had reached upto plinth level. On 1.1.1995 when Baba Kunjabihari Das and other Sanyasies of Latashram started further construction , the second party members created obstruction and also damaged a part of the construction leading to breach of peace. Accordingly, the matter was reported to Joranda Out Post and a possession of the second party members over the disputed plot. On the other hand, the 1 st party members denied the right, title and a proceeding was initiated. The 1 st party member denied the right, title and possession of the second party members over the disputed The 1st party member denied the right, title and possession of the second party members over the disputed plot. On the other hand, the 1 st party contended that the second party members are residents of village Barikunti which is 4 Kms. Away from the disputed land and the land purchased by the second party members appertaining to Sabik Plot No. 13/126 and 39 which do not correpond to the disputed land. But taking advantage of the simplicity of the 1 st party, the second party members advanced claim over the disputed land only because there is a note of forcible possession in the remarks column on the Record-of-Right in respect of the said plot. The 1 st party in order to substantiate his claim filed Xerox copy of the certified copy of the revision petition, the order, the final judgment dated 26.12.1995 and the parawise report in revision proceeding No. 374 of 1993 in the Court of the Commission of Land Records, Bhubaneswar. He also filed the certified of copy of the revision petition, the order, the final judgment dated 26.12.1995 and the parawise report in revision proceeding No. 374 of 1993 in the Court of the Commission of Land Records, Bhubaneswar. He also filed the certified copy of the Khatian in respect of Khata No. 19 of village Natima, Village map. In Support of his contention, he also examined two witnesses.
3. The case of the second party members is that the disputed land under Hal Plot No. 114/396 does not correpond to Sabik Plot No. 39 of Revision Settlement of 1923-1924, but it pertains to plot No. 39 of Revision Settlement of 1923-24. They denied the possession of 1 st party over the disputed land during last two months prior to passing of the preliminary order in the said proceeding. On the other hand, the second party members contended that they are in continuous and undisputed possession over the disputed land since 1972. They further contended that the disputed land was mortgaged with them by Baba Dharmananda Das on 3.1.1957 from which date they are possessing the land. They further stated that there was a dispute in between Kaupunidhari Mahima Samaj and late Sudarshan Parida over the disputed land for which there was Title Suit bearing No. 5 of 1960 in the Court of Subordinate Judge. Dhenkanal. The suit was finally decided in terms of compromise on 10.4.1972. They have also stated in the written statement that plot No. 39 of Revision Settlement of 1923-24 was recorded as road from Joranda to Dhenkanal Town. This road was abandoned and was shifted to further west. Since then Revision Settlement plot No. 39 constructed a stone wall and included the vacant land within his Ashram compound during the year 1953. Encroachment Case No. 585 of 1952-53 was started by the Revenue authority against Baba Dharmananda Das and subsequently the said case was converted to a Lease Proceeding No. 3958 of 1954-55. Plot No. 39 amd [;pt mp/ 13/126 measuring an area of Ac.0.14 decimals were settled with Baba Dharmananda Das by the order dated 15.4.1954 of the S.D.O., Sadar and accordingly, both the plots were mutated in favour of the said Baba Dharmananda. Patta was also issued in support of the said land on 20.4.1995 On 3.1.1957 Dharmananda Das mortgaged the said land with Sudarshan Parida, who is the father of the second party members namely the petitioner Nos. 1 to 4 before this Court, by incurring a loan of Rs. 370/- and executed a deed of mortgage. Having failed to pay back the loan amount, the property was sold to Sarat Parida (petitioner No. 1) for a consideration of Rs. 448/- through registered sale, some members of the Kanpunidhari Mehima Samaj created trouble with said Sarat Parida, as a result of which Title suit No. 5 of 1960/43 of 1962 in the Court of Subordinate Judge, Dhenkanal was filed. Subsequently, the said suit was compromised on 10.4.1972 and out of 14 decimals the members of the Kaupunidhari Mahima Samaj got 30 kadi out of plot No. 39 and 80 sq. kadi out of plot No. 113/126. The second party members along with their co-sharers got 50′ x30′ out of plot No. 39. After such compromise, the respective parties remained in possession of their respective shares. In respect of the land under occupation by the second party members, another suit was filed by one Kamapal Parida and his son which was ultimately brought up to this Court in Second Appeal No. 127 of 1978. a Civil Court Commissioner was deputed to the disputed land for identification of the land and the Amin Comissioner reported that the disputed land appertains to Revision Settlement Plot No. 39 and not 12. The second party members further claim that they have laid foundation over the disputed land for construction of five pucca rooms immediately after disposal of the suit on compromise. In support of their claim, the second party members filed several documents such as the order passed in the said suit, certified copy of the order sheet, in the Encroachemnt case, the mutation patta, motation patta, mortgage dead dated 3.1.1997 executed by Dharmananda Das, the registered sale deed executed on 19.9.1958 by Dharmananda Das in favour of Sarat Parida and copy of the written statement submitted by Guru Charan Das on 8.4.1960 in the said suit and order of this Court in Second Appeal No. 126 of 1978.
4. The learned counsel Shri M.N. Das appering for the petitioners submits that the documents filed before the learned Magistrate were not taken into consideration at all and has drawn the attention of this Court to the relevant paragraph. The learned Magistrate has observed as follows :
“The Second party had not taken adequate steps to prove those documents in proper manner. Hence those document in proper manner. Hence those documents cannot be taken into account for passing of orders in this case.”
On the basis of such observation of the learned Magistrate. Shri Das contends that in a proceeding Under Section 145, Cr.P.C., where the Second party members were claiming title and possession over the disputed land on the basis of certain documents, learned Magistrate could not have ignored the same. The learned counsel further submits that all the document are public documents, which could have been marked either on admission or without objection . Reliance is placed on a decision reported in Vol. 31 (1965) CLT 761 (Gosain Swain and another v. Madan Mohan Mohanty and Ors.). In paragraph 6 of the said judgment, this Court has observed that the learned Magistrate must apply his judicial mind to each of the documents to see if they assist him in arriving at a conclusion regarding the factum of actual possession. In the said case, large number of documents were filed on either side. However, those documents were not marked as exhibits. This Court observed that some of the documents which are public documents could have been marked on admission or without objection. From the impugned order, it appears that documents filed by the second party members were public document and accordingly they could have been marked on admission or without objection. The learned counsel also relies on a decision of this Court reported in 1995 (8) OCR 204 (Nakula Barik v. Sesadev Bhoi and Anr.). In the said case, in a proceeding Under Section 145, Cr.P.C. the Sessions Judge placed reliance on oral evidence and not on documentary evidence. This Court held that the Court has to make evaluation of the evidence in its entirety in order to come to a conclusion. Undue emphasis on oral evidence is indefensible. Shri Das further contends that there was forcible not of possession in favour of Second party members in the Record-of-Rights and such entry of forcible possession creates a presumption in favour of the second party members that they are in possession of the land. He relies on two decisions of this Court reported in 1996 (I) OLR 393 (Jagabandhu Sahu and Ors. v. Commission of Land Records and Settlement, Orissa, Cuttack and Ors.) and Vol. 62 (1986) CLT 322 (Kishore Chandra Das and another v. Gouranga Das and Ors.). It is also contended on behalf of the petitioners that no rebuttal evidence having been laid on behalf of the 1 st party with regard to note of possession in the Record-of-Rights, the presumption of possession was available in favour of the Second party members.
5. Shri. B.H.Mohanty, appearing on behalf of the opposite party submits that had the Magistrate considered all the documents filed on behalf of the petitioners, he would have arrived at the same conclusion. He submits that all the documents filed on behalf of the petitioner relate to Sabik Plot no. 39 and the disputed plot is a part of Sabik plot No. 12. Therefore, even the documents could not have proved the case of the Second party members. Shri Mohanty relies on plot Index indicationg that the disputed land is a part of Sabik Plot No. 12 and not 39.
6. From the impugned order, it is clear that the documents filed on behalf of the second party members were not considered at all on the ground that the same had not been proved in proper manner. A bare perusal of the description of the documents indicated that they are public documents and could have been marked as exhibits either on admission or without objection. Following the decision of this Court reported in 31 (1965) CLT 761 as well as 1995 (8) OCR 204 (supra) I am also of the view that the Magistrate is duty bounded to consider the evidence4 in its entirety and cannot only rely upon the oral evidence and come to a conclusion without reference to the documentary evidence. In my view, the learned Magistrate should have considered all the documents filed on behalf of the Second party members. The contention of Sri. Mohanty that all the documents filed on behalf of the Second party members relating to Sabik Plot No. 39 whereas the disputed plot is a part of Sabik Plot No. 12 could have also been considered by the learned Magistrate taking into consideration of the documents filed on behalf of the second party members.
7. It further appears from the impugned order that the learned Magistrate has only recorded the statements of witnesses in the impugned order, but there appears to be no discussion about such oral evidence. It further appears that the learned Matgistrate has proceeded on the footing that the dispute developed after commencement of construction of wall by Sanyasies of Kaupunidhari Mahima Samaj and therefore, it is implied that the 1 st party member has constructed the wall upto the plinth level over the disputed land and accordingly, he is in possession. In my view such finding is neither supported by any evidence nor based on any material. In view of the discussion made above, I set aside the impugned order and remit back the matter to the learned Magistrate directing him to reconsider the oral and documentary evidence adduced by both the parties and dispose of the same within a period of three months from the date of communication of this order.
The Criminal Revision is accordingly disposed of.