Paramananda Mohanty Vs. Hadibandhu Mohanty and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 1841/63. subsequently, the said land has been recorded in the name of the petitioner as well as his uncle kanhu charan mohanty in the hal record-of-rights. 5. a perusal of the order passed by the executive magistrate indicates that though he has referred to the oral evidence as well as the documents on record, practically there is no discussion as to why the documents specially those filed by the first party member had been discarded. as against those materials, the second party members have failed to produce any documentary evidence indicating their possession. even assuming that the oral evidence on either side was not acceptable, the, documents on record clearly tilt the balance in favour of the first party-petitioner.p.k. misra, j. 1. the member of the first party in a proceeding under section . 145 of the criminal procedure, 1973 (hereinafter referred to as the 'code') is the petitioner in this revision.2. the case has had a chequered career. a proceeding under section . 144 of the code was initiated in the year 1985 which was subsequently converted to one under section . 145 of the code. the dispute relates to sabik plot no. 415 of khata no. 73 and sabik plot nos. 417/1222 and 417/1223 of khata no. 6 in mauza raghunathpur. the executive magistrate by his order dated 4-12-1988 while keeping the disputed lands under attachment had directed the first party to approach the civil court to establish his title. the petitioner filed criminal revision no. 9/89 in the court of the sessions judge which was allowed on 17-3-1990 and the matter was remanded to the executive magistrate for disposal on merit. on 2-7-1991 while rejecting the prayer of the first party for adjournment, the executive magistrate passed an order dropping the proceeding. inevitably, the first party again filed revision before the sessions judge which was numbered as criminal revision no. 97/91. on 7-4-1992, the sessions judge remanded the matter to the executive magistrate for disposal in accordace with law. though the executive magistrate took evidence promptly enough, the matter lingered for about two years. the . petitioner approached this court in criminal misc. case no. 1973/93 which was disposed of on 24-2-1994 with a direction to the executive magistrate to dispose of the proceeding under section . 145 of the code. subsequently, on 15-4-1994, the executive magistrate passed an order declaring possession of the present petitioner in respect of plot no 415. however, in respect of the other two disputed plots, the executive magistrate held that he was unable to decide about the possession of either party and as such dropped the proceeding. this has necessitated a fresh sojourn to the high court by the first party-petitioner.3. the order, of the magistrate declaring possession of the first party in respect of plot no. 415 has not been challenged by the members of the second party and as such has become final. the discussion in the present criminal revision is confined to the claim of either party in respect of c.s. plot no. 417/1222 and 417/1223.4. the first party claims that the aforesaid two plots had been purchased by his uncle kanhu. charan mohanty from suryamani mohanty whose possession had been noted in respect of the said plots in the c. s. record of rights of 1930. it is claimed that after the property was purchased, the same has been settled with kanhu charan mohanty in 0. e. a. case no. 1841/63. subsequently, the said land has been recorded in the name of the petitioner as well as his uncle kanhu charan mohanty in the hal record-of-rights. it is claimed that the petitioner and his uncle had been continuing in possession by paying rent. the second party members claim the property as being the heirs of late suryamani mohanty who died in the year 1964.the executive magistrate after referring to the oral evidence and the documents filed on either side declared the possesion of the first party in respect of plot no 415 only. he held that the evidence adduced on behalf of the second party members in support of their claim of possession was unacceptable. he further held that though the disputed land had been recorded in the names of first party member and kanhu charan mohanty in hal record-of-rights. that by itself was not sufficient to prove possession.5. a perusal of the order passed by the executive magistrate indicates that though he has referred to the oral evidence as well as the documents on record, practically there is no discussion as to why the documents specially those filed by the first party member had been discarded. since more than a decade has passed in the meantime, instead of remanding the matter to the executive magistrate for fresh disposal, i thought it fit to finally dispose of the matter and accordingly, i called upon both the parties to produce the relevant documents for the purpose of finalising the proceeding. both the parties claim their right through suryamani mohanty who was admittedly in possession earlier. the registered sale deeds in favour of kanhu charan mohanty have been filed. there is recital in the said sale deeds regarding delivery of possession in respect of the disputed plots 417/1222 and 417/1223. intimation slip regarding o.e.a. case had been filed on behalf of the first party which indicated that notice had been served on kanhu charan mohanty for the purpose of fixation of rent under section 6, 7 and 8 (b) of the orissa estates abolition act. the executive magistrate held that in the absence of the order of the o. e. a. collector, intimation slip cannot confer any title. such a view may not be strictly correct specially in a proceeding under section 145, where the magistrate is to decide about the question of possession and not of right. the fact that intimation slip had been issued to the first party and his uncle kanhu charan mohanty, ptima facie, indicates that in the 0. e. a. proceeding they were found to be in possession. at any rate, in this court the certified copy of the order passed by the 0. e. a. collector, jagatsinghpur, in o.e.a. case no. 1841/63 has been filed whereunder order has been passed to settle plot nos. 417/1222 and 417/1223 in the name of kanhu charan mohanty, who is admittedly the uncle of the present petitioner. apart from the above documents, a series of rent receipts had been filed on behalf of the first party showing payment of rent by kanhu charan mohanty in respect of khata no. 6 with area of ac. 0.22 decimals which corresponds with the area of the two disputed plots. as such the rent receipts also ptima facie indicate about the possession of kanhu charan mohanty who is none else than the uncle of the petitioner. as a matter of fact, the disputed plot no. 417/1222 and plot no. 415 have been amalgamated and re-numbered as plot no. 495 and plot-no. 417/1223 has been numbered as plot no. 497 in the hal settlement. the petitioner and his uncle kanhu charan mohanty have been recorded in respect of plot nos. 4s5 and 497 in hal khata no. 191. the report of the amin indicates that plot nos. 417/1222 and 415 now correspond to hal plot no. 495 and plot no. 417/1223 corresponds to hal plot no. 497. though record-of-rights by itself does not create nor extinguishes title, a presumotive value is attached to the entries in the record-of-rights. in the absence of any other material, presumption can be raised on the basis of the entry in the record-of-rights that kanhu charan mohanty and the present petitioner were in possession of hal plot nos. 495 and 497 which are relatable to the disputed plots. the executive magistrate has committed an illegality in not giving due importance to the entries made in the said record-of-rights.as against those materials, the second party members have failed to produce any documentary evidence indicating their possession. even assuming that the oral evidence on either side was not acceptable, the, documents on record clearly tilt the balance in favour of the first party-petitioner. 6. having regard to all the aforesaid materials on record and the facts and circumstances, 1 set aside the order of the executive magistrate so far as it relates to plot nos. 417/1222 and 417/1223 in khata no. 6 and uphold the possession of the first party-petitioner in respect of the aforesaid two plots.the criminal revision is accordingly allowed.