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2011 DIGILAW 2000 (PAT)

Raghubansh Narain Singh v. State Of Bihar

2011-09-16

AMARESH KUMAR LAL

body2011
JUDGEMENT Amaresh Kumar Lal, J. 1. The second party- petitioners have preferred this revision application against the order dated 5.10.2006 passed by the learned Executive Magistrate, Aurangabad in Case No. 2021 of 2000, Trial No. 64 of 2002 by which the possession of the first party- opposite party no. 2 has been confirmed and the second party- petitioners have been restrained from going over the land in dispute. 2. Heard learned counsel for the petitioners and learned counsel for the State and also perused the record. No one appears on behalf of opposite party no. 2. 3. A proceeding under Section 144 Cr.P.C. was initiated with regard to the land bearing Khata Nos. 129, 160, 82, 162, Plot Nos. 83, 84, 76, 85, Area 15.3/8 decimals respectively, Mauza Kanchanpur and Khata No. 160, Plot No. 636, Area 4 decimals (house) village Silaunja and Khata No. 58 Plot No. 331, Area 25 decimals, situated at village Silaunja in Block Baroon. Later on, the proceeding was converted into Section 145 Cr.P.C. and both the parties were directed to produce their evidence. After trial, the possession of first party- opposite party no. 2 has been confirmed and the second party- petitioners have been restrained from going over the land in question. 4. The learned counsel for the petitioners has assailed the impugned order mainly on three grounds; firstly, non joinder of parties, secondly previous partition has not been considered and thirdly, report of the Anchal Adhikari has also not be considered by the learned Executive Magistrate. The land in question is in the share of petitioners. 5. It is submitted that the lands in dispute belong to one family. The lands were recorded in the Cadastral Survey 1942 in the name of Brahmdeo Narain Singh. The members of first party and second party are the descendants of Brahmdeo Narain Singh which is evident from the genealogical table as mentioned in paragraph 10 of the revision application as well as at page 2 of the impugned order. The members of first party are the descendants of Gopal Narayan Singh and the members of second party are the descendants of Bal Kuer Narayan Singh. The land in dispute is between Satendra Narayan Singh, one of the branches of Gopal Narayan Singh and Raghubansh Narayan Singh, Bijay Narayan Singh, the descendants of Bal Kuer Narayan Singh. The members of first party are the descendants of Gopal Narayan Singh and the members of second party are the descendants of Bal Kuer Narayan Singh. The land in dispute is between Satendra Narayan Singh, one of the branches of Gopal Narayan Singh and Raghubansh Narayan Singh, Bijay Narayan Singh, the descendants of Bal Kuer Narayan Singh. This is the proceeding regarding share of land but none of other branch of Gopal Narayan Singh i.e. the daughter of Gopal Narayan Singh, Jagpati Devi and her son Mahendra Narayan Singh have been made party to the proceedings, although their interest is vested in the disputed land. Hence it is a defective proceeding and it should have been dropped. 6. This contention could not be controverted by learned counsel for opposite party. Admittedly, both of them are not party in this proceeding. Hence, this proceeding was bad for non-joinder of the parties. 7. It appears that Jagpati Devi and her son Mahendra Narayan Singh have share in the land in dispute but they have not been made party. Hence, the proceeding is defective in view of the decision in the case of Dudh Nath Singh vs. Sarju Singh, reported in 1969 PLJR 153. 8. It has further been contended that Gopal Narayan Singh had filed Partition Suit No. 95 of 1972 which was decided by the learned Civil Court and Gopal Narayan Singh got 1/4 share and as such his two daughters, namely, Radhika Devi and Jagpati Devi have been in possession of 1/8 share in the year 1980 and since then both the sisters have been getting their land cultivated. Since there has been a decision of learned Civil Court, the proceeding under Section 144 Cr.P.C. should not have been converted into proceeding under Section 145. 9. Learned counsel for opposite party could not controvert the contention of learned counsel for the petitioners that there has been a partition between the parties in the year 1966-67. Gopal Narayan Singh had no son, he had only two daughters and both the daughters have got half-half share in the year 1980 after the death of Gopal Narayan Singh. 10. Learned counsel for opposite party could not controvert the contention of learned counsel for the petitioners that there has been a partition between the parties in the year 1966-67. Gopal Narayan Singh had no son, he had only two daughters and both the daughters have got half-half share in the year 1980 after the death of Gopal Narayan Singh. 10. It is well settled principle of law that once the matter has been decided by competent civil court, the proceeding under Section 145 should not have been initiated and if initiated, when it came to the notice of learned Magistrate it should have been dropped. This view finds support from the decision in the case of Surendra Singh & Ors. vs. Jang Bahadur Singh & Anr., reported in 1980 BBCJ 653 . In paragraph 9 of this judgment it has been held as follows:- "9. .......once there is a genuine delivery of possession through court, there is no question of existence of any bonafide dispute so as to vest the Magistrate power to decide the proceeding finally and proper course in such a situation is to drop the proceeding in respect of such land. Reference in this connection may be made to a Bench decision of this Court in the case of Mahendra Bhagat and others v. Bacha Pandey and others where Mr. Justice Kamla Sahai and Mr. Justice Untwalia (as he then was ) considered that question in detail. During the pendency of the proceeding under Section 145 a decree having been passed by the civil court was executed and one of the parties was put in possession of a portion of the subject matter in dispute. A prayer was made on his behalf to drop the proceeding in respect of that portion of the land. That having been rejected by the learned Magistrate this Court while allowing the revision application, observed that after delivery of possession by the civil court there was no bona fide claim over such land and the proper proceeding, if necessary to be started, was to initiate a proceeding under Section 107 of the Code for maintaining peace. I am in respectful agreement with the aforesaid view. I am in respectful agreement with the aforesaid view. In my view, if the Magistrate is allowed to pass an order in favour of the person, who has been evicted in due course of law from the land in question, it will lead to an anomalous position, where two final orders passed by two competent courts are in conflict with each other. This will frustrate the very purpose of initiation of proceedings and passing of final orders under Section 145 of the code,i.e. for maintaining peace. Similar view was expressed in the case of Tekchand vs. Sabir Husain a Full Bench decision of the Hyderabad High Court, and by a learned Judge of the Mysore High Court in the case of Laxmana Subarao Patil and others V. Smt. Bhagubai w/o Subarao Patil." In that view of the matter also, the proceeding under Section 145 Cr.P.C. should have been dropped by the learned Executive Magistrate. 11. The last contention of learned counsel for the petitioners is that the report of Anchal Adhikari has been not been considered by the learned Executive Magistrate, as the Anchal Adhikari has not gone to land in dispute. 12. This contention is not required to be decided in this case, as it is the satisfaction of the learned Executive Magistrate to rely upon the report submitted by the Anchal Adhikari on the ground that Anchal Adhikari did not go to the land in dispute and the report was only made by Halka Karmchari. 13. Considering the aforesaid facts and circumstances, in my opinion, the impugned order is not fit to be sustained. The impugned order dated 5.10.2006 passed by the learned Executive Magistrate, Aurangabad is set aside. 14. In the result, this revision application is allowed.