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2012 DIGILAW 1495 (PAT)

Anita Devi v. State of Bihar

2012-10-19

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing on behalf of the petitioners, the learned Additional Public Prosecutor appearing on behalf of the State, and the learned counsel appearing on behalf of the opposite party no. 2 and 3. 2. The petitioners have approached this Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973, assailing the correctness and validity of the order dated 21st February, 2009 passed in Criminal Revision No. 98 of 2008 by the learned Sessions Judge, Khagaria, whereby the order dated 23.06.2008 passed by the learned Executive Magistrate, Khagaria in Case No. 1202(M) of 1988 in a proceeding under Section 145 Cr. P. C., has been set aside. 3. It appears that a proceeding under Section 144 Cr. P. C. was started by the learned Executive Magistrate, Khagaria as far back as on 18.9.1988 with respect to plots of land bearing Khesra no. 866, 867 and 868, area 2 katha, 5 dhoors situate at village- Sanhouli in the district of Khagaria. In the aforesaid proceeding under Section 144 Cr. P. C., opposite party no. 2 and 3 were members of first party, whereas the present petitioners were the members of second party. After considering the show cause filed by both the parties claiming their possession over the lands in dispute on the basis of valid documents, the aforesaid proceeding under Section 144 Cr. P. C. was converted into a proceeding under Section 145 Cr. P.C. by the order dated 18.11.1988, and both the parties were directed to file their written statement. It also appears that subsequently, on 19.7. 1999 the members of second party filed an amendment petition stating therein that the dispute is only with respect to plot no. 866 and 867, total area being 2 katha 10 dhoors. It was claimed that none of the parties are claiming their possession with respect to plot no. 868. On the basis of materials produced by the parties, the aforesaid proceeding under Section 145 Cr. P. C. was finally disposed of by the judgment and order dated 23.6.2008 and possession of the members of the second party was declared over the disputed plots of land. The members of first party were restrained from creating any obstruction in the peaceful possession of the members of the second party over the lands in dispute till the matter is otherwise decided by any competent court. 4. The members of first party were restrained from creating any obstruction in the peaceful possession of the members of the second party over the lands in dispute till the matter is otherwise decided by any competent court. 4. The members of first party, being aggrieved by the aforesaid judgment and order dated 23.6.2008, preferred Criminal Revision No. 98 of 2008, which has been finally allowed by the impugned order dated 21st February, 2009 passed by the learned Sessions Judge, Khagaria, primarily on the ground that the proceeding under Section 145 Cr. P. C. has not been decided by the learned Executive Magistrate, Khagaria strictly in accordance with the procedure prescribed under the law. 5. Learned counsel appearing on behalf of the petitioners submits that if the learned Sessions judge, Khagaria was at all satisfied that the procedure under Section 145 Cr. P. C. was not strictly followed, then he ought to have remitted the matter back for fresh decision, but he could not have left the issue of possession wide open creating a situation of breaking of head between the parties. He contends that the petitioners have their right, title and possession over the lands in question on the basis of purchase made by them or by their ancestors in the year 1949. 6. Learned counsel appearing on behalf of the opposite party no. 2 and 3 has strongly opposed the prayer. He submits that the opposite party no. 2 and 3 are the purchasers of the land under dispute through valid documents having been executed from the year 1969 to 1991. He further contends that vendors of the opposite party no. 2 and 3 had purchased those plots of land in the year 1916 itself. Therefore, they have got better right, title and possession over the lands in question. 7. After having heard the parties and in view of nature of claims made by the parties with respect to the lands in question and further in view of the fact that the proceeding under Section 145 Cr. P. C. is pending between the parties right from 1988, this Court is of the considered opinion that the dispute between the parties with respect to the lands in question can be effectively and conclusively decided only by a civil Court of competent jurisdiction. P. C. is pending between the parties right from 1988, this Court is of the considered opinion that the dispute between the parties with respect to the lands in question can be effectively and conclusively decided only by a civil Court of competent jurisdiction. No useful purpose would be served by remitting the matter back either to the learned Sessions Judge or to the learned Executive Magistrate, Khagaria for fresh decision in the aforesaid proceeding under Section 145 Cr. P. C., since ultimately the question of right, title and possession would have to be gone into by a civil court of competent jurisdiction. 8. In the aforesaid factual background, this Court is of the opinion that the interest of justice would be sub-served if both parties are given liberty to file a suit before a civil court of competent jurisdiction for getting their right, title and possession declared over the lands in question strictly in accordance with law. It is ordered accordingly. 9. If either party files such a civil suit before a court of competent jurisdiction, the same shall be decided on its own merit on the basis of evidence/ materials produced by the parties without being prejudiced/ influenced by the observations made either by the learned Executive Magistrate, Khagaria or by the learned Sessions judge, Khagaria in the order passed by them, which have been referred to above. After filing of such a civil suit, if there is any situation of emergency, then aggrieved party will be well advised to approach the civil court for any appropriate reliefs with respect to the lands in question. 10. The application stands finally disposed of with the observations and directions made above.