IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.52 of 2007 BANARSI PRASAD @ BANARSI KAHAR Versus THE STATE OF BIHAR & ORS ----------- 11 16.3.2009 In the instant writ petition the petitioner seeks a direction to the respondent authorities to give protection to his life and property and for further direction to the respondents for implementation of the order dated 17.5.2005 passed in Misc. Case No.156P of 2004 passed by the S.D.O. Mohania. The case of the petitioner in brief is that a proceeding under section 145 Cr.P.C. was decided in his favour on 18.9.1969. Thereafter some of the Opposite parties have filed T.S.No.55 of 1971 for declaration of title and confirmation/recovery of possession which was dismissed by judgment and order dated 29.11.1975. Being aggrieved by the aforesaid judgment and order dated 29.11.1975 the Opposite parties have preferred Title Appeal No.1 of 1976 but ultimately the appeal stood abated under section 4(1)(C) of the Consolidation Act by order dated 17.5.1978. Thereafter, the Opposite parties filed an objection under section 10(B) of the Consolidation Act, which too was dismissed by order dated 6.2.1978. Against the said order dated 6.2.1978, the Opposite parties preferred Consolidation Appeal before the Deputy Director Consolidation, Rohtas bearing Case No.284 of 1977-78 which was also dismissed by order dated 8.9.1978. Thereafter the Opposite Parties filed another Title Suit No.3 of 2004 which was also 2 dismissed by judgment and order dated 3.8.2004. However, a Second Appeal preferred by the Opposite Party has been admitted by this court. Learned counsel for the petitioner submits that the issue involved in the Second Appeal is whether the second Title Suit filed by Opposite party was maintainable or not. He submits that though the petitioner succeeded in all the aforesaid cases, the Opposite Parties continued to interfere with his possession and as such he filed Misc. Case No.156P of 2004 before the S.D.O., Mohania for providing due security for going over to his land. The S.D.O., Mohania by order dated 17.5.2005 directed the Officer-Incharge, Ramgarh P.S. to provide due security in respect of his life and concerned property. Mr.K.N.Choubey, learned Senior Counsel for the Opposite party submits that once the appeal stood abated under section 4(C) of the Consolidation Act, the order/decree passed earlier stands wiped out. He further submits that the Opposite party has filed a quashing application in this court against the order dated 17.5.2005 passed by the S.D.M., Mohania in Misc. Case No.156 P of 2004, which is pending consideration. He submits that a writ of mandamus can only be issued if there is corresponding right in favour of a party and corresponding duty on the authorities to perform accordingly. Mr.S.S. Dwevedi, learned Sr. Counsel for the petitioner submits that mere filing a Second Appeal will not suspend the 3 KHAN operation of the impugned judgment and order passed by subordinate courts. Having heard learned counsel for the parties, it appears that the Opposite party up till now has failed to get any order in their favour in respect of title or possession over the land. However, it appears that a quashing application preferred against the order dated 17.5.2005, as contained in Annexure-7, is pending in this court. In view of the aforesaid fact, the direction issued by the S.D.M., Mohania by order dated 17.5.2005, as contained in Annexure-7, passed in Misc. Case No.156P of 2004 would be subject to the result of the quashing application preferred against the same. With the aforesaid observation, this writ petition stands disposed of. (S.P.Singh,J)