JUDGMENT 1. - This revision under section 397/401 Criminal Procedure Code is directed against the order of learned Sessions Judge, Merta dated 12-2-93 whereby while setting aside the order dated 25-3-92 passed by learned Assistant Collector, Makrana, remanded the case back to the court below and restored the order of attachment. 2. Briefly stated the facts of the case are that the non-petitioner no. 2 Abdul Hamid moved an application before the Asstt. Collector on 12-2-92 ups. 145-146(1) Criminal Procedure Code, alleging that Mine No. 65 in the Ullor Range belongs to his forefathers and a Tana.' was also issued though that was destroyed but there exists entry in 'Bapi Khan Register' at Serial No. 172 in the name of his grand father Allahrakh. It was also alleged that he along with his brothers were in possession but Allah Noor, Nabab Ali, Gulam Nabi and Jumma with the connivance of staff of Mines Department has got mutated the disputed Mine No. 65 in their favour for which he had also, filed a complaint in the court of M.J.M. Makrana on 16.12-91. The non-petitioner No. 2 also alleged that in his absence, the present - petitioners encroached upon the disputed mine on 20-1-92 and constructed a room and further they are trying to commit breach of peace, therefore, they be restrained from interfering with the disputed mine. An affidavit was also filed by him. The application was referred to the S.H.O., Makrana and after investigation he filed his report. The Asstt. Collector, Makrana after considering the report of S.H O. on 28-2-92 passed order on both the applications simultaneously and also appointed S.H.O. Makrana as receiver and fixed next date 23-3-92. On 23-3-92 in the presence of parties the case was adjourned for filing reply to 9-4-92. But at 3 P.M. the non-applicant - petitioners Allanoor and Ors. moved an application for dropping the proceedings under sections 145 Criminal Procedure Code and the Asstt. Collector while fixing the case on 25-3-92 issued notice to the counsel for applicant Abdul Hamind to appear on 25-2-92. On 25-3.92, the Asstt. Collector ordered to drop the proceedings under section 145 Criminal Procedure Code and further ordered to hand-over possession of the disputed mine to the non-applicant-petitioners. The applicant-non-petitioner moved a revision before the learned Sessions Judge. The same was allowed and order of attachment passed on 28-2-92 was restored. On 25-3.92, the Asstt. Collector ordered to drop the proceedings under section 145 Criminal Procedure Code and further ordered to hand-over possession of the disputed mine to the non-applicant-petitioners. The applicant-non-petitioner moved a revision before the learned Sessions Judge. The same was allowed and order of attachment passed on 28-2-92 was restored. Hence, this revision filed by the non-applicants Allanoor and Ors. 3. This revision was filed on 17-2-93 and the case was listed on the same day though there was a defect as certified copy of the order was not filed. The Court while granting 10 days time to file certified copy of the order. issued notice in the main revision as well as in the stay application and also ordered that meanwhile the operation of the order dated 12-2-93 shall remain stayed up-to 6-3-93. The non-petitioner no. 2 was served on 23-2-93. The case was listed on 11-3-93, 17-3-93 and 12-4-93. On 12-4-93, it was ordered to be listed on 29-4-93 for final disposal and with the consent of the parties the interim order was extended up to 30-4-93. On 29-4-93 both the parties were present, however, their counsel were not present. The non-petitioner no. 2 Abdul Hamid filed a short reply stating that the order of the learned Sessions Judge has been complied with on 17-2-93 and S.H.O. has taken possession but as this Court passed stay order the petitioners again got possession on 18-2-93 and now in the garb of order of High Court they want to get stay in the civil suit filed by them and, therefore. the star order passed by this Court dated 17-2-93 may not be extended further. But as the counsel for the parties were not present the case was adjourned to 4-5-93 for final disposal. On 4-5-93, the case came up before me and the arguments were heard finally on 5-5-93. 4. Mr. B.L. Purohit, learned counsel for the petitioners submit that the learned Sessions Judge has erred in setting aside the order of Asstt. Collector as on 25-3.92 counsel for the applicant was present and proper opportunity was given and further the learned Sessions Judge passed the order without considering the earlier proceedings initiated under section 145 Criminal Procedure Code concluded on 27-2-80. He also submits that the order of learned Sessions Judge restoring the order of attachment dated 28-2-92 deserves to be set aside. 5. He also submits that the order of learned Sessions Judge restoring the order of attachment dated 28-2-92 deserves to be set aside. 5. On the other hand Mr. Mathur, learned Senior Counsel assisted by Mr. Ranjit Joshi, for the applicant-non-petitioner no- 2 Abdul Hamid has submitted that the learned Sessions Judge has set aside the order of the Asstt. Collector not only on the ground that proper opportunity was not given but on the other grounds also and, therefore, this revision is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the material on record. 7. It is not in dispute in view of the decision of their lordships in Jhunamale @ Devandas v. State of M.P., AIR 1988 SC 1973 wherein Ram Surperi Mohant's case, AIR 1985 SC 472 and also decision of this Court rendered in Mool Chand v. Roop Chand and Anr., 1992 RJ Cr 62 that Section 145 Criminal Procedure Code is a beneficial provision enacted with the express object of preserving the peace and under Section 145 Criminal Procedure Code there is a limited jurisdiction and an order trade under this Section deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order so passed is subject to the decision of the civil court and the unsuccessful party must get relief only in the civil court with a properly constituted suit as it is the civil court which has jurisdiction to give a finding different from that which the Magistrate has reached on the basis of proof and better title of possession. The settled legal position in the said cases is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. Their lordships of the Supreme Court in a recent decision rendered in Dharam Pal and Ors. v. Smt. Ramshri and Ors., 1993 Vol 1 SVLR (CR 1) as regards Section 146 Criminal Procedure Code observed that it is obvious from sub-section (1) of Section 146 that the Magistrate is given power to attach the subject of dispute 'until the competent court has determined the rights of the parties thereto with regards to the person entitled to the possession thereof. 8. 8. In the instant case on the basis of report of the SHO that there is likelihood of blood shed between the parties, the learned Asstt. Collector on 28-2-92 while issuing notice to the non applicant petitioners Allanoor and Ors. under section 145(1) Criminal Procedure Code appointed SHO Makrana as receiver. The next date was fixed on 23-3-92. The non applicant petitioner no. 2 filed reply stating that a licence has been issued by the Mines Department in their favour and earlier to these proceedings, in the year 1980 proceedings under section 145 Criminal Procedure Code bearing no. 3/77 were initiated and possession was handed over to them as they were in possession. It was further stated that by way of civil litigation no. 32/77 the possession of non applicants viz. Allanoor and Anr. has also been established by Munsif Parbatsar vide order dated 2-5-77 and in the appeal no. 7/77 the same has been upheld. On 23-3-92 both the parties appeared but the counsel of the non applicants did not appear and the case was adjourned to 9-4-92 for reply of the non applicant No. 1. Thereafter at 3 P.M. on 23-3.92, the non applicants along with their counsel Shri Kastoor Chand Parekh appeared and filed an application stating that they have decisions of civil as well as executive courts in their favour and thus the proceedings under section 145 Criminal Procedure Code are not maintainable. The Assistant Collector while issuing notice to applicant's counsel ordered to place the case on 25-3-92 for maintainability of the proceedings. One Shri A.K. Bang an advocate from Parbatsar appearing on behalf of the applicant non petitioner No. 2, the notice was served at 11 p.m. in the night on 24-3-92 who by his note appended to the back side of notice requested that it is not possible for him to appear before the court on 25-3-92 at Makrana as he will remain busy in Camp Court of the learned Dist. and Sessions Judge at Parbatsar. It was also mentioned that the time given is very short and further his client who resides at Makrana must also be informed instead of informing him at Parbatsar. The other notice issued by the Asstt. and Sessions Judge at Parbatsar. It was also mentioned that the time given is very short and further his client who resides at Makrana must also be informed instead of informing him at Parbatsar. The other notice issued by the Asstt. Collector was served on Shri Mohammed Ishaq another advocate of the applicant on 25-3-92 at 10.50 A.M. On 25-3-92 the counsel of the non-applicant - petitioners Shri Kastoor Chand Parekh appeared and on behalf of the applicant Shri Mohd. Ishaq put in appearance and the Asstt. Collector discharged proceedings under section 145, Criminal Procedure Code Under the circumstances, when once the Asstt. Collector adjourned the case in the presence of both the parties, while preponding the date from 9-4-92 to 25-3-92 it was incumbent upon him to give them sufficient and adequate opportunity to appear particularly when there was specific request as per endorsement of advocate Shri A K. Bang to this effect. Therefore, under the circumstances the argument that one of the advocate of the applicant was present who did not raise objection is not sustainable. The learned Sessions Judge has observed that there is no dispute about the legal position relating to parallel proceeding that they are not permissible but as a matter of fact the alleged proceedings pending about the disputed mine were not civil proceedings as they were criminal proceedings wherein the applicant-non-petitioner was not even a party Moreso, no opportunity was granted to the applicant to file a rejoinder to meet the case of the non-applicants. In view of this the petitioners cannot take advantage of the alleged earlier proceedings without there being any finding of civil court regarding possession during the relevant period. It is true that in revision the learned Sessions Judge while exercising re-visional powers should not normally exercise his discretion vested under section 397 Criminal Procedure Code but if there is a glaring defect in the procedure or there is manifest error on point of law resulting into flagrant miscarriage of justice, interference can be made by the learned Sessions Judge, In the present case as discussed above when adequate time and opportunity was not granted to the applicant non-petitioner No. 2, so also there is gross misreading, in may opinion the learned Sessions Judge has rightly set aside the order passed by the Asstt. Collector dropping the proceedings under section 145 Criminal Procedure Code. 9. Collector dropping the proceedings under section 145 Criminal Procedure Code. 9. As regards the legal plea advanced regarding maintainability of criminal proceedings as civil suit is pending, as already stated parallel proceedings cannot be allowed to continue. Even if interim order is passed in pending civil suit, it would not be proper to allow criminal proceedings to continue and the same be quashed by competent court. In the present case in a pending civil suit which was filed after passing of the order of discharge the petitioners have now filed a stay application u/O. 39 R. 1 and 2 notice have been served on 7-4-93 on the applicant non-petitioner No. 2 Abdul Hamid and the next date fixed is 20-5-93. Admittedly at the time of initiation of criminal proceedings ups. 145 Criminal Procedure Code no civil suit was pending between the parties therefore no advantage can be taken on the ground that parallel proceedings are pending. However, the ultimate rights of the parties, can only be decided by a competent court who will determine the rights between the parties. In other words as soon as the civil court is seized of the matter and passes an order of injunction or receiver, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute. In view of this it would be just and proper under the facts and circumstances of this case that both the parties should appear before the competent court on the next date and that court will decide their rights. Till then the order of attachment passed by the teamed Asstt. Collector on 28.2-93 will continue because as a matter of fact the order of learned Sessions Judge dated 12-2-93 was complied with on 17-2-93 and in pursuance of that order the SHO took the possession of the disputed mine on that day which is evident from the document placed on record, however, the same was taken back by the non-applicant petitioners on 18-2-93 in compliance of order of this Court dated 17-2-93 which in fact could not restore possession to them as operation of the order, which was stayed by this Court was already given effect to and possession was taken from the petitioners and virtually the stay petition had become in fructuous . and, therefore, the order passed by this Court in the stay petition is of no avail to the petitioners and they cannot take advantage of that in the civil court also. 10. In the result this revision has no force, so it is hereby dismissed. Both the parties are directed to appear before the competent civil court on 20-5-93 and on any other date which will be fixed by the court. The competent civil court will be free to pass appropriate order on the injunction application and can consider the effect of alleged civil suit at appropriate stage after giving full opportunity of bearing to both the parties. Any order passed by any court including this Court will not prejudice either side. However, till the competent civil court passes an order on the injunction application the possession will remain with the SHO Makrana the receiver as ordered by the learned Sessions Judge, Merta. *******