G.B. Pattnaik, J.
1. This appeal under letters patent is directed against the judgment and decree of the learned single Judge in F. A. No. 19/77.
2. Plaintiffs and the legal representatives of some of them are The appellants. The suit was one for declaration of title in respect of Schedule 'A' and 'B' properties of the plaint on the basis of their possession and for recovery of the suit land as well as mesne profit.
3. It is alleged in the plaint that the suit lands in question measuring 15 acres form a part of survey No. 159 in village Jura. The plaintiffs further aver that the lands were recorded in the record of rights as Abada Jogya Anabadi. One Krutibasa who was the Karta was residing in the village from 1930 to 1962 and some times in 1948 he occupied 'A' schedule land measuring about 8 acres which is the southern portion of the suit lands adjoining the inam lands of the village. Even after abolition of the Sanakhemundi estate in 1953 said Krutibasa continued to possess these areas but as his possession was treated to be unauthorised encroachment proceeding under the provisions of the Orissa Prevention of Land Encroachment Act had been initiated. Penalty was charged and he was allowed to continue therein. Said Krutibasa sold the land to plaintiff Nos. 1 and 3 and deceased plaintiff No. 2 whose legal representatives are plaintiffs 2(a) to 2(f) and gave possession of the land to the plaintiffs. While possessing 'A' schedule the plaintiffs reclaimed another area of 7 acres as indicated in Schedule 'B'. While the plaintiffs were thus possessing the land the defendants disturbed their possession and initiated a proceeding under S,ec. 145 Cr PC. That proceeding having terminated against the Plaintiffs, the plaintiffs filed the present suit for the relief as already stated.
4. Defendants denied the allegation made in ,the plaint and, on the of her hand, contended, that they were in, possession of the lands from their forefathers and also pleaded a case of perfection of title by adverse possession.
5. The learned trial Judge framed five issues and recorded the following findings ;
(i) The suit lands should not form apart of the Paik service inam lands, of defendants 1 and 2;
(ii) PW 1 was possessing the land described in Schedule 'A' and penalty had been. .. levied, from him in the encroaching proceeding;
(iii) Plaintiffs were in possession of the entire disputed properties ill initiation of a proceeding under Section 145 Cr PC and then the defendants came to possess the lands;
(iv) Plaintiffs had reclaimed the 'B' schedule property in 1862 and, possessed the same along with 'A' schedule property and acquired possessory title in 'respect of the entire 'A' and 'B' schedule properties;
(v) Defendants having no title or possession until the date of the, preliminary order in 145 Cr PC proceeding are not entitled to resist the plantiffs' claim.
With these findings that suit having been decreed, the defendants carried the matter in appeal.
6. The learned single Judge reversed 'the judgment and decree of the trial Judge solely on the ground that in view of, the, finding of the Criminal Court in, 145, CrPC proceeding and in the absence of a case of dispossession of the plaintiffs on a particular 0ate a presumption arises as to, the Continuous earlier possession of the defendants and in that view of the mattar, the plaintiffs' relief cannot be granted. It is to be, noted that neither evidence of , possession led by the plaintiffs and found by the trial Judge, were discussed by, the, learned single Judge nor any other questions have been gone into,
7. At the time of hearing of this A.H O. Mr. Padhi appearing for the appellants raised two contentions in assailing the judgment and decree of the; single Judge ;
(i) The single Judge erred in law in basing his finding on the question of possession solely on the order of the Magistrate in 145 Cr PC proceeding and thereby the impugned judgment is vitiated,
(ii) In any view of the matter the plaintiffs having claimed interest on the basis of their possession which was found by the trial Court and in the appeal before the learned single Judge plaintiff No. 1 who was respondent No. 1 having died in the year 1985 and no substitution having been made and similarly appellant No. 2 having died in 1387 and no substitution having been made, the entire appeal' abated and the decree is a nulity.
8. Mr. Ramdas appearing tor the respondents, on the other hand, contends that findings of the learned single Judge cannot be considered to be a finding solely on the basis of the order of the Magistrate under Section 145 Cr PC though the learned single Judge has rightly stated that the said order cannot be ignored by the Civil Court and according to him the finding on the question of prossession has been arrived at by the learned single Judge on appreciation of the entire evidence on record and, therefore, there has been no infirmity in the. same. So far as the second contention of Mr. Padhi is concerned Mr. Ramdas is not in a position to assail the same.
9. We have carefully gone through the judgment of the learned single Judge in F.A. 19/87 and on examining the same we find that the entire finding on the question of possession is based on the order of the learned Magistrate in 145. Cr PC Proceeding There cannot be any dispute with the proposition of law that a finding of a Crimnal Court under Sections 145. Cr PC cannot, be the sole basis for consideration before the Civil Court and in fact an aggrieved party in a proceeding under Section 145, Cr. PC has only to file a suit for declaration of title as well as possession. In that view of the matter the ultimate conclusion of the learned single Judge being of the Magistrate, an out- come of the sole consideration of the- order under Section 145, Cr PC - proceeding the same cannot be sustained.
10. The trial Judge found the plaintiffs' possession until the order of the Magistrate was passed in 145 Cr PC proceeding. Obviously the plaintiffs' title to the land on the basis of ownership has not been established. Such possession of the plaintiffs is nothing but that of a tresoasser. The averments made in the plaint make out a case of joint trespasser. The assertions of the plaintiffs-appellants in the memorandum of this A.H.O, that plaintiff No. 1 who was respondent No. 1 died in the year 1935 and defendant No. 2 who was appellant No. 2 died in the year 1987 and there was no substitution for either of them while the appeal was pending before the learned single Judge have not been controverted. In that view of the matter the case being one of joint trespass the decree of the learned trial Judge remains operative and the entire First Appeal has abated. Therefore, on this ground also the judgment and decree of the learned single Judgs cannot be sustained. We accordingly set aside the judgment and decree of the learned single Judge passed in F.A. 19/73 and affirmed the judgment and decree of the learned trial Judge passed in T.S. 2/75.
B.N. Patnaik, J.
I agree.