IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3251 of 2007 JITESHWAR SINGH Versus STATE OF BIHAR ----------- 12 22.7.2008 Heard learned counsel for the petitioner as also the learned A.P.P. for the State and the learned counsel for O.P. No. 2. The petitioner through this application has prayed for quashing of order dated 13.7.2006 passed by the learned 1st Additional Sessions Judge, Kaimur at Bhabua in Cr. Revision No. 125 of 2000, whereby he has approved and upheld the order dated 29.12.1999 passed by the learned Executive Magistrate, Mohania in Case No. 223(M) of 1993 wherein the learned Magistrate has declared possession of O.P. No. 2 over the disputed lands by an ex parte order. Admittedly the petitioner herein who was second party before the Magistrate in the proceeding under section 145 Cr.P.C. was not present when the case was called out and in his absence order dated 29.12.1999 was passed ex parte declaring possession of first party. This order was impugned before the Sessions Court in Cr. Revision No. 125 of 2000 where the same did not find any favour and was dismissed. Before this Court it has been submitted on behalf of the petitioner that it was due to ailment of O.P. No. 2 that he could not appear before the Magistrate and an opportunity be given to him to place his case before the learned Magistrate. Admittedly a civil suit in respect of title and possession - 2 - over the lands in question is pending between the parties being Title Suit No. 147 of 1993. It is well settled that right, title, interest and possession of a party can only be declared by a competent Court of civil jurisdiction and the declaration in respect of the possession as given by the learned Magistrate holds good uptil the decision in the civil suit. Due regard being had to the facts and circumstances of the case I do not find any merit in this application which is dismissed. Spd/- (Abhijit Sinha, J.)