IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23642 of 2007 1. Mazahar Imam 2. Azahar Imam Both sons of Late Dr. Abul Hassan, residents of Mohalla- Mufti, P.S. Town, District-Darbhanga ---------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Ram Chandra Mahto, Son of Chulhai Mahto, resident of Mohalla-Mufti, P.S. Town, District-Darbhanga ----------------------- Opp.Parties. ----------- For the petitioners : M/S Arif Siddiqui, and Md. Anish Akhtar, Advocates For the State : Dr. Mayanand Jha, A.P.P. For Opp.Party no.2 : M/S Prem Kumar Verma, and Neel Kamal, Advocates. ---------------- O R D E R The second party in a proceeding under Section 145 Cr.P.C. being Darbhanga M.R. No.1332 of 2000 are aggrieved by order dated 4.3.2003 passed therein by the learned Sub Divisional Magistrate, Sadar, Darbhanga, whereby he refused to drop the said proceeding and the consequential order dated 13.2.2007 passed by the learned 1st Additional Sessions Judge, Darbhanga in Cr.Revision No.118 of 2003, whereby he has dismissed the revision preferred against the order dated 4.3.2003. On a petition filed by Ram Chandra Mahto, impleaded herein as Opp.Party no.2, a proceeding under Section 145 Cr.P.C. was initiated in respect of the lands detailed therein on 18.11.2001 and notice was issued to the petitioners herein, who were impleaded as Second party in the court below, and on appearance they filed a - 2 - petition on 4.3.2003 with a prayer to drop the proceeding on the ground that the lands in respect whereof the proceeding had been initiated were involved in Title Appeal No.7 of 2001 pending before the District Judge, Darbhanga . However, the learned Sub Divisional Magistrate, Sadar, Darbhanga , by his order dated 4.3.2003 rejected the petition and the Cr.Revision No.118 of 2003 preferred by the petitioners herein was also dismissed by the learned 1st Additional Sessions Judge, Darbhanga by order dated 13.2.2007. The Submission on behalf of the petitioners is that they had filed Partition Suit No.70 of 2001 on 9.6.1964 for partition of 7 annas share in their favour in respect of the suit lands including the lands of 145 Cr.P.C. proceeding claiming the said lands to be their ancestral property with residential house thereupon, wherein they and defendant no.1 were residing and were feeling inconvenience in keeping the properties joint. It is further submitted that since defendant nos. 1 to 19 claimed to have purchased / got settlement from the share of one of the co-sharers, they were also impleaded as defendants second party wherein Opp.Party no.2 was defendant no.18 and his father, Chhathu Mahto, was defendant no.3. Both Chhathu Mahto and Ram Chandra Mahto filed separate written statements and Ram Chandra Mahto did not claim any interest in the lands in dispute in the present proceeding. The said suit on contest was decreed in part by Judgment dated 25.1.1974 against the contesting defendants including defendant no.18 and a preliminary decree was passed which was signed and sealed on 15.2.1974 and following the appointment of Pleader Commissioner - 3 - and on perusal of his report of Takhtabandi , his report was confirmed and a final decree was prepared and sealed and signed on 29.6.1996. Defendant no.18 filed First Appeal no.461 of 1986 before this Court and a petition under Order 39 Rules 1 and 2 C.P.C. for interim injunction restraining the petitioners herein which was rejected by order dated 16.5.1981 . However, later on, upon detection that the pecuniary value of the case were not sufficient for entertaining the First Appeal before the High Court it was returned to the appellant for presentation before the District Judge, Darbhanga and on fresh presentation before the District Judge, it was registered as Title Appeal No.7 of 2001 and is pending. In the light of this background as stated in the foregoing paragraphs, it has been submitted that the initiation of the proceeding under Section 145 Cr.P.C. was bad in law and being wholly misconceived and in view of the pendency of the Title Appeal a parallel criminal proceeding in respect of the same lands was not maintainable. Before the Revisional Court reliance was placed on the decision of Ram Sumer Puri, Mahanth Vrs. State of U.P. ( A.I.R. 1985 SC 742) which was unfortunately not appreciated . It was further submitted that when the High Court rejected the injunction petition of Opp.Party no.2 herein and the Revisional Court not appreciating the well established principle of law of no criminal proceeding being maintainable in respect of the same lands, which were in dispute in respect whereof a civil litigation was pending , the initiation of the proceeding under Section 145 Cr.P.C. was bad in law - 4 - and, therefore, the orders of the courts below in not dropping the proceeding was an abuse of the process of the court and therefore, fit to be quashed. It was also submitted that there being no report of any overt act or any apprehension of breach of peace the learned Magistrate ought not to have initiated the proceeding under Section 145 Cr.P.C.. Opposing the submissions advanced by the learned counsel for the petitioners, it was submitted on behalf of Opp.Party no.2 that his father Chulhai Mahto was a major share-holder in the suit property by virtue of almost 20 ( twenty ) sale deeds executed in his favour as also his sons and daughter in-law was impleaded in the partition suit as defendant no.3 and he filed his written statement to contest the suit. The trial court declared the share of the plaintiffs in the suit property to the extent 5 annas 3 Paisa and 1 adhi only and not to the entire share of 7 annas 1 adhi as claimed by them. It was further submitted that though no specific share of the defendants including Defendant no.3 were declared , yet the trial court observed that the possession of the different parties should be respected keeping in view their proportionate shares at the time of affecting actual apportionment during the final decree proceeding. Since the specific share of defendant no.3 was not declared in the suit property , he filed an application under Section 151 C.P.C. in the trial court for modification in the judgment declaring extent of his share in the suit property which was registered as Misc.Case No.16 of 1977 and on adjudication by order dated 27.2.1978 the share of defendant no.3, - 5 - Chulhai Mahto, in the suit property was declared to the extent of 8 annas and 1 adhi. Notwithstanding the same and without the knowledge of defendant no.3 a Pleader Commissioner was appointed and his report having been accepted became the decree of the court. Chulhai Mahto then preferred First Appeal no.461 of 1986 before the High Court and after four years in view of the pecuniary jurisdiction of the District Judge having been enhanced the memorandum of appeal was returned for filing before the District Judge. The factum of dismissal of the injunction petition by this Court has been admitted. It was also submitted that consequent to the death of the father, Chulhai Mahto , Ramchandra Mahto inherited the entire properties of Chulhai Mahto being the sole heir and he filed a petition for initiation of the proceeding under Section 145 Cr.P.C. as the petitioners taking the law in their hands were bent upon dispossessing him from the properties which were legally under his possession and as such there was an apprehension of breach of the peace. The Revisional Court in dismissing the revision relied upon the observation of this Court in its order dated 16.5.1991 , whereby the prayer for ad interim injunction was rejected . This Court had observed : In my opinion, the prayer for injunction cannot be allowed on the facts stated in the petition. If the decree- holder-plaintiff wants to intend to take the law in their own hands and intend to dispossess the appellant- petitioner by using force, the law and order machinery and the police and the executive may be approached for taking action against any person who takes the law in their own hands.” According to the Revisional Court , Opp.Party no.2 herein - 6 - apprehending unlawful interference in his enjoyment of the land in his possession had approached the learned Sub Divisional Magistrate for initiating a proceeding under Section 145 Cr.P.C. .The order of the learned Magistrate does not indicate that there was indeed an apprehension of the breach of peace in respect of the lands in dispute and, therefore, he was unable to drop the proceeding. It has been held in Ram Sumer Puri Mahant’s case ( Supra) that when possession is being examined by the Civil Court and the parties are in a position to approach the Civil Court for interim orders , such as injunction or appointment of Receiver for adequate protection of the properties during the pendency of the dispute the multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation and the Hon’ble Apex Court proceeded to quash the order of the learned Magistrate, by which the proceeding under Section 145 Cr.P.C. was initiated. I have gone through the Judgment of Ram Sumer Puri Mahant’s case ( Supra) and do not find myself in a position to distintinguish the same in the facts and circumstances of this case. That apart a proceeding under Section 145 Cr.P.C. for the same relief is not maintainable which is the subject matter of the Title Suit. In that view of the matter, the order passed in the Revision as also the order of the learned Magistrate cannot be sustained in law and have to be quashed. In the result, the application is allowed and the impugned orders of the courts below are hereby quashed. In the event of any - 7 - unforeseen circumstances or there being any real apprehension of breach of the peace the parties shall be at liberty to move the District Judge in the pending Title Appeal. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 28th May,2009 Nawal Kishore Singh/A.F.R.