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2007 DIGILAW 234 (PAT)

Nand Kishore Singh v. State Of Bihar

2007-02-02

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Sec. 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 19.1.2004 passed by the Sub-Divisional Magistrate, Sitamarhi in case no. 1110 of 2003 whereby and whereunder the pending proceeding under sec. 144 of the Code has been converted into one under Sec.145 and notices have been issued to the parties to file their written statement in support of the claim. There is also prayer for quashing the order dated 8.4.2005 passed by the said Magistrate by which the petition dated 6.1.2004 filed by petitioner Nand Kishore Singh has been rejected. 2. It appears that the learned Sub-Divisional Magistrate on the basis of a petition filed by Opposite Party No. 2 Lal Mukhi Devi and after being satisfied that on account of land dispute there were tension between the parties and also apprehension of breach of peace at their hands, initiated the proceeding under Sec.144 of the Code and directed the parties to file their show cause. 3. Both the parties appeared and filed show cause and other papers in support of their respective claim. Learned Magistrate again heard the matter and by order dated 19.1.2003 converted the pending proceeding under Sec.144 to one under Sec.145 of the Code and again directed the parties to file their respective written statement and other evidence in support of their claim. It further appears that on the basis of police report of Officer In-charge, Majorganj Police Station, learned Magistrate after being satisfied attached the land under Sec.146(1) of the Code. Thereafter a petition was filed on behalf of the Second Party to drop the proceeding as partition suit in respect of the suit land was pending in court. Learned Magistrate heard the matter and by order dated 8.4.2005 rejected the prayer and observed that the proceeding would continue. 4. The land involved in the proceeding is 80 decimals of plot no. 3540 under Khata No. 799. The case of the petitioner (second party) before the Magistrate was that one Jhingpur Singh was the common ancestor of the parties. He died living behind son Bhairo Singh only, Bhairo Singh executed a registered deed of gift in favour of his wife Saraswati Devi in respect of 80 decimals of land of plot no. 3540 under Khata No. 799 situated at Mouza Kuwari Madan RS. He died living behind son Bhairo Singh only, Bhairo Singh executed a registered deed of gift in favour of his wife Saraswati Devi in respect of 80 decimals of land of plot no. 3540 under Khata No. 799 situated at Mouza Kuwari Madan RS. Majorganj, District Sitamarhi and thereafter on 8.1.2003 Mostt. Saraswati Devi through registered sale deed dated 1.8.2003 for consideration of Rs. 80,000 sold 76 decimals of plot no. 3540 under Khata No. 799 to Malti Devi who is wife of Nand Kishore Singh. After execution of the sale deed Malti Devi got her name mutated and started paying rent and getting rent receipt from the State of Bihar. He also took the stand that first party Lal Mukhi Devi is the kept of Bhairav Nandan Singh since 1973 and as such she has no right, title, interest and possession over the land in question. It is further stated that Asha Singh daughter of Lal Mukhi Devi filed suit bearing partition suit no. 258 of 2003 before the Court of Sub-Judge 1st, Sitamarhi in which 23.2.2004 she filed injuction petition under Order 39 Rules 1 and 2 and Sec.151 of the Code of Civil Procedure to restrain the defendants including Saraswati Devi from executing any sort of deed with respect to suit properties mentioned in schedule no. 1 of the plaint and also from cutting the standing trees and bamboos over the land but the said injunction petition has been dismissed by order dated 29.9.2004. 5. Submission of learned counsel for the petitioner is that partition suit no. 258 of 2003 was filed in the Court of Subordinate Judge, Sitamarhi on 1.11.2003 in which land in dispute is also involved. His further submission is that the present proceeding was initiated on 28.11.2003 much after the filing of the partition suit. His further submission is that Mostt. Lal Mukhi Devi can get the desired relief in the said partition suit with respect to plot no. 3540 and hence the continuation of the present proceeding under Sec.145 of the Code is illegal. He also pointed out that it is settled view that where a civil litigation is pending for the property where in the question of possession is involved and is to be adjudicated upon initiation of a parallel criminal proceeding under Sec.145 of the Code would not be justified. He also pointed out that it is settled view that where a civil litigation is pending for the property where in the question of possession is involved and is to be adjudicated upon initiation of a parallel criminal proceeding under Sec.145 of the Code would not be justified. In support of his contention, the learned counsel placed reliance on a decision of the Apex Court reported in 2001(1) PLJR page 136 given in the case of Amresh Tiwary vs. Lalta Prasad Debey & Ors. The Apex Court in the said decision at para 140 observed as follows: "It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court the proceedings under Sec.145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate." 6. Learned Counsel for the Opposite Party No. 2 however, supported the impugned order. 7. Thus, the position is that partition Suit No. 258/03 between the parties was pending prior to the initiation of the present proceeding. The land involved in the proceeding is a subject matter of the partition suit. Both the parties are in a position to approach the court for relief regarding protection of the property. The Civil Court is competent to decide the question of title as well as possession between the parties. 8. In the aforesaid facts and circumstances, the continuation of the procecing under Sec.145 of the Code in my considered opinion will not be proper. This application is accordingly allowed and the two impugned order dated 19.1.2004 and 8.4.2005 are set aside. 9. Before parting with the order would like to observe that if the Sub-Divisional Magistrate have occasion to come to the conclusion that due to inimical feelings the petitioner or anyone or his behalf or the members of the oppostion party or anyone on their behalf are likely to commit breach of the peace or disturb the public tranquility in future he will proceed against them according to law or he may take other necessary measures in accordance with law.