IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6752 of 2007 1. Musafir Yadav 2. Raj Kumar Yadav Both are sons of Sarju Yadav, resident of Ward No.5 (New), Daudnagar,Purani Sahar, P.O. and P.S.Daudnagar, District- Aurangabad. ---------------------- Petitioners. Versus 1. The State of Bihar 2. Sub Divisional Magistraate, Daud Nagar, Distt- Aurangabad 3. Officer Incharge, Daudnagar Police Station,Daudnagar,Distt- Aurangabad. 4. Vijay Kumar Bariyar, Son of Late Bageshwari Prasad Bariyar, Resident of Ward No.2 (Old), Daudnagar, Purani Sahar, P.O. & Police Station –Daudnagar, District –Aurangabad. --------------------- Opp.Parties. ----------- For the petitioners : M/S Jitendra Pd.Singh, and Santosh Kumar Verma, Advocates For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.4 : M/S Anand Sharan, and Basant Kr.Tripathi, Advocates. ------------- O R D E R The members of the Second Party in a proceeding under Section 145 Cr.P.C. being case no.694 of 2002 have filed this application for the quashing of the order dated 10.1.2007 passed therein by the learned Sub Divisional Magistrate, Daudnagar , whereby he has attached the property in dispute under the provision of Section 146 (1) Cr.P.C. and has appointed the Officer Incharge of Daudnagar Police Station as the receiver of the said property. The bone of contention is an area of 3 acres 3 decimals of land appertaining to Khata no.204 , Plot no.589 and 1 acre 36 ½ decimals of land appertaining to Khata no.205 , Plot nos.593 and 595, - 2 - situated in Ward no.5, Daudnagar within the district of Aurangabad. The aforesaid proceeding under Section 145 Cr.P.C. was initiated on the basis of an application filed by Opp.Party no.4 herein. The petitioners on receipt of the notice appeared in the case and filed their written statement denying the claim raised by Opp.Party no.4 on various grounds inter alia that the land in question is the Khatiyani lands of the petitioners and since the Cadestral Survey in the year, 1914, their ancestors and they have been coming in peaceful and continuous possession over the said land. It was further submitted that in the Cadestral Survey Khatiyan, the land was recorded in the name of one Ram Charan Ahir and after his death, the same came in possession of his only son ,Jitbahan Yadav, who had two daughters, namely, Sonamati Kuer and Jamuni Devi, and Jamuni Devi is the mother of the petitioners . It was also submitted that Sonamati Kuer had no issue and she executed a deed of gift with respect to her half share in the said lands in favour of the petitioners and since then they have been coming in cultivating possession over the said land on the basis of their absolute right, title and interest. The further submissions were that in the Revisional Survey Khatiyan , the lands have been recorded in the name of the petitioners and they are paying rent to the Government on the basis of Jamabandi created in their favour , and as such, there was no question of Opp.Party no.4 being in possession over the said lands. Objections have also been raised for non-joinder of their mother as a party Respondent, although she along with the petitioners was the rightful owners of the land. - 3 - The learned counsel for the petitioners further sought to point out that in a part of the disputed lands, the boundary wall including a room of the petitioners and several trees are standing which is evident from the report submitted by the Enquiry Officer in this proceeding. It was also sought to be pointed out that the prayer of Opp.Party no.4 herein for attachment of the property in dispute under Section 146 Cr.P.C. had been rejected earlier on three occasions in the same proceeding vide orders dated 5.7.2003 , 30.4.2004 and 6.7.2005 respectively and these not having been challenged in a superior forum , the same had become final and hence , the present order for attachment of the same property is not only unwarranted but an abuse of the process of the court. Opp.Party no.4 has appeared and filed counter affidavit to contest this application. It has been submitted on behalf of Opp. Party no.4 that he is in possession of the land by virtue of being bona fide purchaser and is paying rent to the Government and has full right, title and possession over the same and the petitioners herein are mere Bataidars working in the lands in question on the basis of Bataidari. The police report dated 7.6.2005 shows that there is imminent danger and possibility of disturbance of peace. It further appears that in their case, the Additional Collector in Rent Determination Appeal Case no.23 of 1994 has held that Opp.Party no.4 is in possession of the land and has been paying rent to the Government. The said order of the Additional Collector was challenged in C.W.J.C.No.8509 of 1995 by the mother - 4 - of the petitioners which was withdrawn in order to prefer a civil suit and L.P.A. No.159 of 1996 arising from the said order passed in the writ application was dismissed. I have had the occasion to go through the documents filed by both the parties and Annexures of their respective pleadings and it appears therefrom that there is imminent danger of breach of peace between the parties in respect of possession over the disputed land. In the aforesaid circumstances, the learned Magistrate was fully justified in attaching the disputed lands under the provisions of Section 146 (1) Cr.P.C. in order to prevent the apprehended breach of peace and possible blood-shed. I find no apparent illegality in the order impugned and uphold the same. If there is any dispute regarding the possession over the lands in question, the same ought to be settled finally in a civil suit before a court of competent jurisdiction. I find no merit in the application which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated: the 23rd January,2009 Nawal Kishore Singh/ A.F.R.