Judgment :

Dr. B.R.Sarangi, J.

The petitioners, who are the first party members, in a proceeding under Section 147, Cr.P.C., have filed this application assailing the order dated 6.1.2011 passed by the learned Ad hoc Addl. District & Sessions Judge, Jajpur in Criminal Revision No. 57 of 2009 setting aside the order dated 16.10.2009 passed by the Executive Magistrate, Jajpur in Crl.Misc. Case No. 272 of 2008.

2. The fact of the case is that the first party members, petitioners herein, are using the disputed land as passage “Gharoi Rasta” and the same is being used since their forefathers because they belong to one family. The details of the case land is as follows:

“District: Jajpur, P.S.Jajpur, P.S.No. 189, Tahasil, Jajpur, Tahasil No. 189, Mouza- Trilochanpur,

(i) M.S.Khata No.60, MS Plot No.192, Areae Ac.0.010 dec. corresponding to Sabik Khata No.23, and Plot No. 157(P);

(ii) M.S.Khata No.120, M.S.Plot No.192, area Ac.0.020 dec. corresponding to Sabik Khata No.14 and Plot No. 158(P)”

The petitioners are using the said case land as only approach road/ passage to their residential house and except the said land, the petitioners have no other approach road/ passage to their residential house. The 2nd party members- opposite parties threatened the petitioners not to use the said land as road and tried to obstruct the road by constructing a cowshed and created disturbances with the first party members, as a result there is obstruction in the ingress and egress to the residential house of the first party members though they are entitled to use the said land as their easement right and there is no “Gharoi Rasta” to the case land. The 2nd party members- opposite parties stated that the plot has been recorded wrongly in the kisam as "rasta" and it is actually homestead in kisam and there is existing residential pucca house of the 2nd party members. It is further stated that the 2nd party members have no knowledge of Tahasil report and the 1st party members by influencing the Tahasil Amin, could manage to prepare false report without going to the spot and issuing notice to them. It is further stated that the 2nd party members are the owners of the plot in question and are in possession over it although it is wrongly recorded as kisam “rasta” in M.S. R.O.R.

3. To the above facts and circumstances, since the 2nd party members- opposite parties created disturbances to the ingress and egress of the petitioners and using the suit land as “Gharoi Rasta”, apprehending breach of peace, the first party members, petitioners herein, filed an application before the Executive Magistrate, Jajpur, which was registered as Crl.Misc. Case No. 282 of 2008 under Section 147, Cr.P.C. on the basis of the report of the Tahasildar, the 2nd party members were directed not to obstruct the passage used as “rasta” by the first party members- petitioners, until further orders. Learned Executive Magistrate after hearing both the parties by order dated 16.10.2009 directed the 2nd party members to remove the obstruction (cow shed) from the common passage used as “Gharoi Rasta” for better convenience of both the parties within seven days from the date of issue of order, failing which the Tahasildar, Jajpur will remove the obstruction from the common passage with help of local police and realize the cost of such removal from the opposite parties as arrear land revenue.

4. Being aggrieved by the said order of the Executive Magistrate dated 16.10.2009 under Annexure-1, the 2nd party members- opposite parties preferred Crl.Revision No. 57 of 2009 before the learned Adhoc Addl. District & Sessions Judge, Jajpur under Sections 399 and 400, Cr.P.C. The learned Ad hoc Addl. District and Sessions Judge, Jajpur after hearing the parties by order dated 6.1.2011 set aside the order passed by the Executive Magistrate on the ground that the Executive Magistrate has illegally passed the order without supporting evidence for situation likely to cause breach of peace and also non-com