IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.54 of 2006 BIRENDRA SINGH @ BIRU SINGH @ BIRENDRA KUMAR SINGH & ORS. Versus THE STATE OF BIHAR & ORS. ----------- 06/ 21.08.2008 This application has been filed by the petitioners against the order dated 20.10.2005 passed by Sri B.K.Sah, the Executive Magistrate, Bihar Sharif in a proceeding under section 145 of Code of Criminal Procedure bearing case no.01(M)03, thereby the possession of opposite party nos.2 and 3 has been declared over the disputed land. Heard learned counsel for both the parties. It is submitted on behalf of the petitioners that the order passed by the court below is wrong, bad and illegal. The court below had no power to initiate and decide the possession or title under section 145 of the Code of Criminal Procedure over residential house. It is further submitted that Khatiyan itself would show that a residential house exists over the disputed land bearing plot no.564. No proceeding under section 145 of the Code of Criminal Procedure can be initiated over a residential house. In support of it, the learned counsel for the petitioners has relied upon a decision of this court, reported in 2001(3) P.L.J.R. 471(Dilip Poddar Vs. State of Bihar, Amod Kumar and ors.). On the other hand, the learned counsel for the opposite parties submitted that the matter has already been decided, therefore, the order in question should not be set aside on mere technical ground. Considered the submissions of the learned counsel for both the 2 parties and also a decision of this court reported in 2001(3) P.L.J.R. 471. The admitted fact is that there is a residential house over the disputed land bearing plot no.564. In Khatian also, a residential house has been recorded over the disputed land. This matter has also been mentioned in the last paragraph of the impugned order. In the aforesaid decision of the Hon’ble Court, the similar matter came for consideration and in paragraphs-4 and 5 of the judgment it has been held as follows: “ 4. After hearing learned counsel of both the parties and on consideration of all materials it could be found that practically the fight is in between the parties regarding right of possession and the right to title over the property in question which definitely cannot be decided by a criminal court. The property in question is residential house and it is beyond the power of the Executive Magistrate to decide the possession or otherwise. In that view of the matter, while passing the order of withdrawal of attachment order, the learned Executive Magistrate ought to have passed order dropping the proceeding as contemplated under Section 145 Cr.P.C. directing the parties to seek their grievances before the appropriate court. 5. Considering all aspects of the matter, in my considered view, the proceeding under Section 145 Cr.P.C. over a residiential house was misconceived one on the face of it and the same ought to have been brought by the learned Magistrate while withdrawing the order passed under section 146(1)Cr.P.C. Be that as it may, without going into such details I hold that it was a fit case where whole of the proceeding under Section 145 Cr.P.C. ought to have been dropped and it is accordingly dropped. However, any observation made by the Executive Magistrate in respect of possession over the house in question of the parties shall not be binding on any of the parties in any other forum while seeking redressal by the aggrieved party.” 3 On consideration of the facts and circumstances of the case as well as the law laid down, I am of the view that the proceeding under section 145 of the Code of Criminal Procedure itself was not maintainable in the eye of law. It touches the very jurisdiction of the Magistrate. Accordingly, this petition is allowed and the impugned order is hereby set aside. The parties are at liberty to move before the Civil Court in title suit, if so advised. harish/ (Ghanshyam Prasad, J.)