IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10597 of 2002 MADAN SAH S/O LATE SARYUG SAH, AZAM NAGAR, ALAF GANJ, POLICE STATION LNM UNIVERSITY, DARBHANGA. Versus 1. THE STATE OF BIHAR 2. SDM, SADAR DARBHANGA 3. SRI SHAMBHU KUMAR, EXECUTIVE MAGISTRATE, SADAR DARBHANGA 4. INNER DEVI,W/O SONEY MAHTO, UGHRA, BAHADURPUR,DARBHANGA 5. MANOJ SAH, S/O LATE LAXMAN SAH, AZAM NAGAR. & ORS ----------- 6 22.01.2010. The petitioner has come to this Court against order dated 19.6.1995, passed by the SDM, Sadar, Darbhanga in Petition no. 1263/1994, filed by one Sudama Devi directing the petitioner to vacate the house or its portion under her possession, otherwise he will be evicted by force. The petitioner has also prayed for quashing all subsequent orders passed by respondent no.2 for giving effect to the order dated 19.6.1995 as contained in annexure 1. Case of the petitioner in short is as follows:- One Sudama Devi wanted to dispose of her house premises for which an agreement/Mahadanama dated 16.12.1992 was executed between her and the petitioner for a consideration of Rs. 1, 05,000/-. Pursuant to the same, petitioner was delivered possession of the premises except one room on receipt of earnest money of Rs. 50,000/- .As said Sudama Devi did not perform her part of contract, the petitioner filed title suit no. 54 of 1994 before Sub-judge, Darbhanga for specific performance of contract. Sudama Devi subsequently filed a petition stating therein that the deed of agreement is a forged document and petitioner illegally dispossessed her and as such she prayed for restoration of possession. The SDM, Darbhanga after - 2 - hearing the parties directed the petitioner to vacate the premises otherwise he would be evicted by force. Leaned counsel for the petitioner submits that the Executive Magistrate, Sadar Darbhanga, respondent no.3 is not an authority in law to direct anyone to vacate his possession on petition of another party. He submits that pursuant to part payment of consideration money he was given the possession of the house, save and except one room. He further states that he filed a quashing application before this Court being Cr.Misc. No. 9796/95, which was dismissed on 18.9.1995 as it was not maintainable. State and private respondent no. 5 have appeared and filed their counter affidavits. In para 6 of the counter affidavit filed by the State, it has been stated that Mostt. Sudama Devi was ousted by the writ petitioner from her Pakka and Khaparposh house made on one dhur of land. Her LTI was forcibly taken on three blank stamp papers. Learned counsel for the State refers to an enquiry report dated 12.5.1994, annexure A. He further stated that petitioner preferred quashing application against aforesaid order before this court which was dismissed on 18.9.1995 vide Cr.Misc. No. 9796/95, a copy of the order has been annexed as annexure A. Contesting respondent no.5 who is claiming inheritance through late Sudama Devi stated that petitioner moved this court against the impugned order dated 19.6.1995, passed by the SDM, which was dismissed by this court on 18.9.1995 after hearing the arties. He submits that there is nothing in the order to show that the quashing - 3 - application was dismissed as not maintainable, rather the order shows that it was dismissed on merit. He further states that Sudama Devi was forcibly dispossessed from the house and her LTI was taken on blank paper. He further states that Sudama Devi filed a criminal case also, in which finally charge sheet has been submitted under sections 380 and 386 of the I.P.C. He also submits that the petitioner filed an injunction petition under Order 39 Rule 1 and 2 for restraining respondents from dispossessing him which too was dismissed vide order dated 6.12.1995, which order become final, as it has not been altered by any superior court. He states that petitioner filed Cr Revision No. 86 of 1996 before the Sessions Judge, Darbhanga against order dated 22.12.1995 which too was rejected on 10.7.1996 as not maintainable. The petitioner also moved the learned Collector, Darbhanga in Misc No. 58 of 1996-97 against order dated 19.6.1995, which was too rejected by him on 10.5.2001/17.5.2001. learned counsel for respondent no.5 states that petitioner has suppressed dismissal of injunction petition in the Title suit as well as dismissal of petition filed before the District Magistrate, Darbhanga. He submits that in any view of the matter, the petitioner has come to this Court against order passed on 19.6.1995 in this Court in September, 2002. He thus submits that this writ petition is fit to be dismissed on point of latches itself. Heard learned counsel for the parties. It would appear from materials on record that the petitioner had moved this Court against order dated 19.6.1995 passed n Cr. Misc - 4 - No. 9765/95 which was dismissed on 18.9.1995. The petitioner had submitted that aforesaid order was dismissed as non maintainable. However order dated 18.9.1995 which is quoted herein below does not show that it was dismissed as non-maintainable. “Heard learned counsel for the petitioner and the opposite parties. This application is dismissed.” I further find that an injunction petition filed under Order 39 Rule 1 & 2 in Title suit no. 57/1994 filed by petitioner was also rejected by the trail court in Title suit no. 57 of 1994. Furthermore, I find that the petitioner has come to this Court belatedly after seven years of passing of the impugned order in 1995. In view of the above, I am not inclined to interfere with the impugned order dated 19.6.1995 passed by SDM, Sadar, Darbhanga in Petition no. 1263/94 contained in annexure 1. The instant writ application stands dismissed. However, dismissal of writ application will not prejudice the petitioner in any other proceeding. Shashi. (Samarendra Pratap Singh).