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2007 DIGILAW 163 (PAT)

Pramod Shankar Prasad Verma v. State Of Bihar

2007-01-22

ABHIJIT SINHA

body2007
Judgment 1. The 1st Party of a proceeding under Sec.145 Cr.P.C. being Case No.M-31 of 2003 is aggrieved by order dated 10.4.2004 passed by the learned Sub Divisional Magistrate, Siwan and, therefore, has invoked the inherent jurisdiction of this Court for quashing of the said order as also the order dated 14.12.2004 passed by the learned lllrd Additional Sessions Judge, Siwan in Criminal Revision No. 107 of 2004 who upheld the order of the learned Sub Divisional Magistrate, Siwan. 2. The facts of the case may be noticed with relative brevity. Late Lalji Sahay had two wives. Two sons, Bageshwari Prasad and Tripurari Prasad were born from the first wife whereas Adya Prasad and Vidya Prasad were born from the second wife and on the death of Lalji Sahay before the revisional survey operation his sons inherited the properties left behind by him and came in possession thereof and the lands were recorded in the name of his sons. It is said that in the year 1925 there had been a private partition amongst his four sons by virtue whereof Tripurari Prasad got seven kathas out of Survey Plot No. 2343 and he remained in possession thereof. It is also said that since the sons were separate both in mess and business in all respects, separate returns as per share were filed on vesting of Jamindari in the year 1955-56. Laljis son Tripurari Prasad also had two wives, Ramkumari Devi and Nagina Devi and Ramkumari Devi died issue-less in the year 1959 and shortly thereafter Tripurari Prasad transferred his entire property barring a few by a registered deed of gift in favour of Nagina Devi. Tripurari himself expired in 1964 whereupon Nagina Devi inherited all his properties including the seven kathas out of survey plot no. 2343 and came in exclusive possession thereof. It is said that since Nagina Devi was also issue-less and died in the year 1990 she transferred her entire estate by two deeds of gift of the year 1974 and 1986 in favour of the petitioner herein, namely, Pramod Shankar Prasad Verma including the seven kathas of land in Survey Plot No. 2343. Accordingly, the petitioner herein, came in possession of all the lands aforesaid, got his name mutated in the revenue records and he has been paying rent against receipts. 3. Accordingly, the petitioner herein, came in possession of all the lands aforesaid, got his name mutated in the revenue records and he has been paying rent against receipts. 3. It appears that one Prabha Shankar Verma, Son of Bageshwari Prasad illegally and without any valid authority executed sale deed dated 17.12.1999 in favour of O.P No. 2 with respect to two kathas of land out of the seven kathas of Survey Plot No. 2343 but as O.P. No. 2 by virtue of the aforesaid sale deeds intended to take forcible possession of the two kathas of land which led to apprehension of breach of peace. Accordingly, a proceeding under Sec.144 Cr.P.C. was started, which eventually lost its force by afflux of time. It is further stated that in the mean-while the matter was taken to the Sessions Judge in Criminal Revision who while disposing of the same made an observation that if in case the breach of peace exists, there should be a proceeding under Sec.145 Cr.P.C. The aforesaid Prabha Shankar Verma also filed a Title Suit bearing title-cum-partition Suit No. 259 of 2002 questioning the propriety of the gift deeds and partition of the property. 4. It further appears that O.P. No. 2 herein, Bankey Sharma who is not a party to the suit aforesaid filed a petition in the instant proceeding for dropping the proceeding under Sec.145 Cr.P.C. primarily on the ground that a civil suit between the parties is pending and that his house stands upon the disputed land and the learned Magistrate acting thereupon dropped the proceeding vide impugned order dated 10.4.2004 without even looking into the report dated 5.2.2003 of the Anchal Amin and the Criminal Revision No. 107 of 2004 preferred against the said order ended in a similar result. 5. The grievance of the petitioner is that the learned Magistrate as also the Additional Sessions Judge had committed serious error of records in holding that a civil suit between the parties with respect to the disputed land was pending. 5. The grievance of the petitioner is that the learned Magistrate as also the Additional Sessions Judge had committed serious error of records in holding that a civil suit between the parties with respect to the disputed land was pending. In this context, the learned counsel for the petitioner pointed out that the O.P. No. 2, Bankey Sharma, was not a party to the suit nor the said Prabha Shankar Verma was a party to the present proceeding under Sec.145 Cr.P.C. In other words, what the learned counsel for the petitioner sought to point out was that the proceeding under Sec.145 Cr.P.C. could not have been dropped due to the pendency of the civil suit since the parties in both the cases were not the same. In this connection, it was also sought to be pointed out that in the said title suit Prabha Shankar Verma had filed a petition for impleading O.P. No. 2 herein, Bankey Sharma as a party-defendant but the same was dismissed vide order dated 17.1.2005. 6. On the other hand, the learned counsel for the O.P. No. 2 has referred to two decisions of this Court, namely Madan Mishra vs.Triloki Nath Pandey, reported in 2000(1 )PLJR 885 and Atahaul Haque vs. Md. Allauddin, reported in 2000(3) PLJR 90 wherein it was observed that no proceeding under Sec.145 Cr.P.C. for any portion of the suit land can proceed when a civil suit for title and possession with respect to the disputed land is pending before the Civil Court but it does not matter if the entire disputed land in the two proceedings are not identical and some of the parties are different. Parallel proceeding cannot be permitted to continue for fear of two conflicting decisions. 7. Admittedly, in the proceeding under Sec.145 Cr.P.C. Prabha Shankar Verma, the plaintiff of Title suit No. 259 of 2002 is not a party and in the proceeding under Sec.145 Cr.P.C, Bankey Sharma, opposite party No. 2 herein is not a party. However, in view of the two decisions of this Court, as stated above, joinder or non-joinder of a party is immaterial. Accordingly, I find and hold that the impugned order of the learned Magistrate as also the learned Additional Sessions Judge cannot be interfered with. 8. Accordingly, there is no merit in this application and the same is dismissed.