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2000 DIGILAW 516 (PAT)

Setu Band Pandey v. State Of Bihar

2000-03-31

M.L.VISA

body2000
Judgment 1. This is an application for quashing the order dated 23.6.1999 passed by the Sub-Divisional Magistrate, Mohania (respondent No. 2) whereby and whereunder, he without hearing the petitioners and respondent 3rd set and without issuing any notice upon them directed the officer-in-charge, Mohania to provide necessary co-operation and security to respondent 2nd set for cultivation and also for quashing the order dated 29.7.1999 passed by respondent No. 2 rejecting the prayer of petitioners for re-calling his order dated 23.6.1999. 2. According to the case of petitioners certain lands described in paragraph 3 of the application (hereinafter to be referred to as land in question) belonged to one Radha Pathak and after his death it was jointly inherited by his widow Genda Kuwar and daughter Yashoda Kuwar, who in the year 1961 jointly executed Hibanama in favour of petitioner No. 1 which was accepted by him and on the basis of this Hibanama petitioner No. 1 came in possession of the land in question, his name was mutated in respect of this land and he has been paying rent and regularly getting rent receipts (Annexure-2). Subsequently, petitioner No. 1 sold some portion of land in question to petitioner Nos. 2, 3 and respondent 3rd set, who are in possession over the purchased portions. In the year 1981 respondent No. 2 tried to create disturbance in the cultivation of petitioners and a proceeding under Section 144, Cr PC was initiated between the parties which was later on converted in a proceeding under Section 145, Cr PC and on 8.4.1983, it was finally decided in favour of petitioners and respondent 3rd set. 3. The further case of petitioners is that a petition for grant of probate was filed by Yashoda Kuwar before 2nd Additional District Judge, Bhabhua being Probate Case No. 27/1 of 1982/90 on the basis of an alleged will executed by Radha Pathak and during the pendency of the probate case Yashoda Kuwar died and in her place Dulhin Ram Dulari Devi, wife of respondent 2nd set, got her name substituted and on 16.11.1995 after hearing the parties this probate case was dismissed by the learned 2nd Additional District Judge, Bhabhua. Dulhin Ram Dulari Devi filed First Appeal No. 814 of 1995 before this Court which is still pending. Dulhin Ram Dulari Devi filed First Appeal No. 814 of 1995 before this Court which is still pending. She again got a proceeding under Section 144, Cr PC initiated against the petitioners and respondent No. 3rd set in the Court of Sub-Divisional Magistrate, Mohania, who after hearing the parties restrained 1st party respondent No. 2 from interfering in the possession of the petitioners and respondent 3rd set. Dulhin Ram Dulari Devi apart from filing the aforesaid case under Section 144. Cr PC also filed Probate Case No. 25 of 1996 before the Court of Subordinate Judge-1, Kaimur, Bhabhua, impleading the State of Bihar as opposite-party for grant of Probate or Letters of Administration on the basis of an alleged registered Will, dated 9.2.1982 said to have been executed by Yashoda Kuwar and the learned Subordinate Judge by ex parte order, dated 18.9.1996 passed in Probate Case No. 25/96 allowed the case and granted probate with respect of land in question. The petitioners and respondent 3rd set against the aforesaid order of the learned Subordinate Judge passed in Probate Case No. 25/96 filed a petition for revocation of probate certificate/letters of administration and this petition has been numbered as Misc. Case No. 29/97 which is pending for final adjudication before the Court of 1st Subordinate Judge, Bhabhua. Thereafter, Dulhin Ram Dulari Devi filed a case numbered as 259/99 before the Court of Sub-Divisional Magistrate, Mohania, against the petitioners and respondent 3rd set for grant of Police help in cultivation over the land in question and her prayer was allowed by the learned Sub-Divisional Magistrate, Mohania, by order dated 23.6.1999 and when the petitioners and respondent 3rd set made prayer for recalling this order their prayer was rejected by order, dated 29.7.1999 passed by the learned Sub-Divisional Magistrate, Mohania (Annexure-6). 4. Respondent 2nd set has filed counter-affidavit. The case of respondent 2nd set is that Radha Pathak had executed a deed of Will in favour of Yashoda Kuwar, who executed a registered Will dated 9.2.1982 in respect of land in question in favour of Dulhin Ram Dulari Devi and Probate Case No. 25/96 filed by Dulhin Ram Dulari Devi was allowed and probate certificate was issued in her name and she is in possession of the land in question. The fact that the proceeding initiated under Section 145, Cr PC in respect of land in question has been decided in favour of petitioners and respondent 3rd set is not in dispute. It is also not disputed that the respondent 2nd set has not challenged the order passed in this proceeding before any Civil Courts. The learned counsel appearing on behalf of respondent 2nd set has stated that because of an order passed in favour of respondent 2nd set under Section 10(b) of Consolidation of Holdings Act in favour of respondent 2nd set there was no necessity of challenging the order passed in the proceeding under Section 145, Cr PC declaring the possession of petitioners and respondent 3rd set, besides an order already passed in favour of wife of respondent 2nd set in a probate case. In respect of the order which has been passed in Probate Case No. 25 of 1996 in favour of wife of respondent 2nd set the case of petitioners is that their petition against this order has been registered as Misc. Case No. 29/97 which is still pending before the Subordinate Judge-1, Bhabhua for final adjudication and in Probate Case No. 25 of 1996 an order was obtained by Dulhin Ram Dulari Devi suppressing the fact that a similar probate case was earlier dismissed and appeal which has been numbered as FA No. 814 of 1995 is still pending before this Court against that order of dismissal. About the order passed under Section 10(b) of the Consolidation of Holdings Act the case of petitioners is that the operation of the order has been stayed (Annexure-8). 5. From the aforesaid fact, it is clear that the order which has been passed in a proceeding under Section 145, Cr PC which was initiated between the parties in respect of land in dispute is in favour of petitioners and respondent 3rd set. No doubt in favour of wife of respondent 2nd set order in Probate Case No. 25 of 1996 has been passed but this order has been challenged by the petitioners and the matter is pending for adjudication whereas the order passed in favour of petitioners and respondent 3rd set in a proceeding under Section 145, Cr PC has not been challenged by the respondent 2nd set in any Civil Court. As the order passed in a probate case cannot be in respect of any title and at best it will be in respect of genuineness of will only, on the basis of this order respondent 2nd set cannot claim any title over the land in question. 6. During the course of argument learned counsel appearing on behalf of respondent 2nd set has submitted that this application has become infructuous because by the impugned order the Police help was obtained only for harvesting the crop which has already been harvested and the order has already been complied with. From the perusal of the impugned order dated 23.6.1999 passed by the SDM, Mohania (Annexure-1) the contention of learned counsel for respondent 2nd set does not appear to be correct. The impugned order shows that mainly considering the grant of certificate in a probate case the prayer of respondent 2nd set for Police protection in cultivation of land in question has been allowed. It further appears that when the petitioners filed a protest petition against the order dated 23.6.1999 passed by the Sub-Divisional Magistrate, Mohania the same was rejected by order dated 29.7.1999 (Annexure-6) without considering the fact that the petitioners have been found in possession of the land in question a proceeding under Section 145, Cr PC which was initiated between the parties and also with an observation that order dated 23.6.1999 has already been complied with. 7. In the result, this application is allowed and the impugned order dated 23.6.1999 and 29.7.1999 passed by the Sub-Divisional Magistrate, Mohania, are hereby quashed.