IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11336 of 2007 1. JEETMAL SURANA son of late Bachh Raj Surana 2. Navratan Surana, son of late Jatanmal Surana Both residents of villalge Chopara Ram Nagar, P.S. Jankinagar, District Purnea … … Petitioners Versus 1. STATE OF BIHAR 2. Beer Narayan Yadav, son of latge Naini Lal Yadav, resident of village Khuat, P.S. Janaki Nagar, District Purnea … … Opp. Parties For the petitioners: Sri Kumar Uday Singh,Advocate For the State: Sri Dashrath Mehta,Addl. P.P. ----------- O R D E R 5. 29 .4.2009 The present petition has been filed by the Ist party to the proceedings under Section 145 Cr. P.C. bearing case No. 276 M of 2000 which related to a dispute allegedly and particularly to some part of R.S. plot No. 2156 to the extent of 46 decimals of land of village Madhuwan under Khata No. 579 within P.S. Janki Nagar in the district of PUrnea and the dispute related to the alleged encroachment by the petitioners of the above area of 46 decimals by amalgamating the same with their undisputed plots bearing R.S. plot Nos. 2154, 2148 and 2159 under different khatas in the same village as per the description contained in the impugned order 2 passed by the Sub-divisional Magistrate, Banmankhi. Some of the undisputed facts were that three R.S. Plot nos. 2154,2148 and 2159 were in the boundary of plot no. 2156 and were definitely under the possession of the petitioners. The opposite party no. 2, i.e., Beer Narayan Yadav, filed a petition for getting his land, bearing R.S. Plot No. 2156, measured by the Anchal Amin of Banmankhi and the report of the Anchal Amin indicated the amalgamation by encroachment of 46 decimals of land as stated at the very out set of the present order. The petitioners’ father had come undisputedly into the possession of R.S.plot nos.2154, 2148 and 2159 by virtue of a deed of gift and after the death of the father of the petitioners, the petitioners were undisputedly in possession of the same and also in possession of the alleged amalgamated area of 46 decimals of land of R.S. plot no. 2156. Opposite party no.2 claimed the land through purchase from another person by his father and was coming into possession of the plot. It is not 3 disputed that the Anchal Amir’s report is the only basis for the Executive Magistrate to come to the conclusion that the petitioners had illegally encroached upon the land and had come in possession and there was no dispute that either of the parties claimed any of the plots which have been claimed individually by them except that opposite party no. 2 claimed an area of 46 decimals to be earmarked and separated from the amalgamated block formed by three R.S. plot nos. 2154, 2148 and 2159 which could be, according to him, the part of his land pertaining to R.S. Plot No. 2156. The learned Executive Magistrate held that the father of opposite party no.2 was in possession and that the encroachment was completed by the petitioners. The learned Executive Magistrate, as such, declared the possession of opposite party no.2 over the alleged encroached area of 46 decimals of land and directed that the petitioner shall not interfere with the said possession of opposite party no.2 unless the order dated 5.10.2003 was set aside by a competent civil 4 court. The petitioners challenged the above order dated 5.10.2003 before the Sessions court through Cr. Revision petition No. 351 of 2003 and that petition was heard by learned Additional Sessions Judge-I, Purnea and the learned Judge dismissed the petition upholding the order of the learned Executive Magistrate declaring the possession of opposite party no.2 over the said area of 46 decimals of R.S. Plot no. 2156 though he noticed that there was a Title Suit pending between the parties, as may appear from the order dated 2.3.2006 passed in the above noted Criminal Revision Petition(Annexure-2). If one could peruse the provisions of Section 145 of the Cr. P.C., one could find that the Executive Magistrate could declare the possession of any of the parties to the proceedings only when he has a definite material before him indicating that the dispute was bona fide in respect of a land and was detrimental to peace on account of disputed question of possession. The power of the Executive Magistrate under Section 145 5 Cr. P.C. is only to ascertain, on holding an enquiry, the possession of a party to the proceedings and to declare him to be in such possession but that declaration could never go beyond a period of two months prior to the date of drawing up of a proceeding under Section 145(1) Cr. P.C. For declaring any party entitled to possession what the Executive Magistrate has to do is to hold an enquiry and during that course he has to peruse the written statements of the parties, take evidence to be produced by them and then to decide as to which of the parties on the date of order under Section 145(1) Cr. P.C. or three months prior thereto was in possession of the subject matter of dispute. As may plainly appear from the provision of Section 145 Cr.P.C., an Executive Magistrate does not have any jurisdiction to go into the question of title and interest in any property of a party. In other words, the Executive Magistrate could not declare any of the parties to the proceeding to be entitled to the properties on account of holding an interest in it. 6 Thus, holding a party to the proceedings under Section 145 Cr. P.C. to have an interest in the property and, as such, the said party being entitled to possession could not be the domain of an Executive Magistrate. The only jurisdiction which lies with the Executive Magistrate is to go into the disputed question of possession and to ascertain the same up to the date two months prior to the initiation of the proceeding under Section 145(1) Cr. P.C. and to pass an order in that connection declaring any of the parties to be entitled to possession. If one could consider the order of learned Executive Magistrate, one could find that he had not stated as to from which date the disputed question of possession on account of bona fide land dispute was placed before him. He has further not been able to record a finding as to from which date opposite party no.2 was found in possession of the disputed area of 46 decimals of R.S. plot no. 2156. In fact, the learned Magistrate by the operative part of his order, has held that the petitioners’ claim 7 to title and possession was baseless. The learned Magistrate was exceeding his jurisdiction when he was making any observation or recording any finding on the question of title of the present petitioners. That jurisdiction did not vest in him. I have already pointed out that undisputedly, the petitioners were in possession of 46 decimals of land which was in their possession, allegedly, by virtue of encroaching upon the part of R.S. Plot No. 2156. As may appear from the impugned order itself, there were trees and other movable properties standing thereon. So, there could not be any question of the dispute having arisen two months prior to the proceedings being drawn up in the light of the provision of Section 145(1) Cr.P.C. The learned Magistrate, as such, appears failing in his statutory obligation of exercising the jurisdiction properly and correctly. In fact, the learned Magistrate has no jurisdiction to act in the matter as there was no disputed question of possession placed before him which could have arisen two months prior to 8 that date the proceedings under Section 145 Cr. P.C. was drawn up. In the above light, the whole proceedings appears being afflicted by the lack of jurisdiction of a court under Section 145 Cr. P.C. The proceedings and as such, the result on that, i.e., the impugned order dated 5.10.2007 passed by the Executive Magistrate in the case bearing no. 276M of 2000 and that passed by learned Additional Sessions Judge Ist dated 2.3.2006 in Criminal Revision No. 351 of 2003 are hereby quashed. The other angle from which the above order of quashing appears meritorious to me was that, admittedly, there was a Title Suit pending before the competent civil court and it is supposed that the question of being in possession or not being in possession by virtue of encroachment or perfecting title even by encroaching upon the land within the knowledge of its owner and remaining in such possession for or beyond the statutory period could be question of pure civil nature and that could be decided only by a competent civil court. In that background also the orders have to be quashed. 9 Accordingly, this petition is allowed in the above terms. Kanth/A.F.R. ( Dharnidhar Jha, J.)