IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48907 of 2007 1. RAJESHWAR SINGH, SON OF SRI INDRADAYAL SINGH. 2. JAG NARAYAN SINGH, SON OF LATE RAM SWARUP SINGH. 3. RAMESH SINGH, SON OF SRI JAG NARAYAN SINGH ALL ARE RESIDENTS OF VILLAGE-BASAHI, POLICE STATION- KUDRA, DISTRICT- KAIMUR(BHABUA). Versus 1. THE STATE OF BIHAR 2. MANJU KUER (SINGH) WIFE OF LATE SHYAM JEE SINGH, RESIDENT OF VILLAGE BASAHI, POLICE STATION-KUDRA, DISTRICT- KAIMUR (BHABUA). For the petitioner : Mr. Yogendra Kumar, Advocate. ----------- 4 25.03.2010 Heard learned counsel for the petitioner. First party to the proceeding under Section 145 Cr.P.C. is opposite party no. 2 herein. Petitioners are members of the second party. At the instance of first party, a proceeding initially under Section 144 Cr.P.C. appears to have been initiated. Ultimately, it was converted into a proceeding under Section 145 Cr.P.C.. The dispute relating to title and possession over certain pieces of land is based on a series of sale deeds executed in favour of the second party by one Reshma Kuer. Case of the opposite party is that Reshma Kuer had no title and interest in land and, therefore, to execute sale deeds respecting the lands which remained exclusive property in possession of the first party (opposite party no. 2 herein). A suit between the parties to the Section 145 Cr.P.C. proceeding was pending in the court of Sub- Judge-I Kaimur (Bhabua) (Title Suit no. 185/1997). Opposite party no. 2 herein is the plaintiff whereas the petitioners were impleaded as defendants(members of second party). The said 2 suit ultimately was decreed on contest and the learned Trial Judge declared all the sale deeds executed in favour of the petitioners by one Reshma Kuer as illegal and void document which were executed without consideration and, therefore, not binding on the plaintiff. Armed with the aforesaid decree, the opposite party no. 2 herein filed an application in the present proceeding for withdrawal of Section 145 Cr.P.C. proceeding stating therein that she continued to be in possession and the title over the suit land has also been declared by a competent civil court as the sale deeds, which provide the sheet anchor of the case of the second party, have been declared to be illegal and inoperative. The learned Magistrate, by order dated 22.7.2006, accepted the said contention of the first party (opposite party no. 2) and closed/terminated the proceeding. It is to be noted here that during the pendency of the application, an order in terms of Section 146(1) was passed whereby Anchal Adhikari, Kudra was appointed as receiver. This order was passed sometime in the year 2002. Since then, the receiver used to settle the land and deposit the bid amount. The opposite party no. 2 ( first party) moved an application before learned Sub-Divisional Magistrate, Mohania for an order permitting her to withdraw the amount deposited by the receiver during the currency of the order passed under Section 146(1). Learned Magistrate considered the said application and by the impugned order dated 3.8.2006, directed the receiver (Anchal Adhikari, Kudra) to make payment of the bid 3 amount to the opposite party no. 2 (first party in the proceeding). Learned Magistrate has clearly found and held that proceeding under Section 145 proceeding was initiated at the instance of the opposite party no. 2 and armed with a decree of a competent civil court, she has prayed for termination of the proceeding which, prima facie, indicates title and possession of the first party respecting the disputed land. Having recorded such finding, the order impugned was passed. Dissatisfied with the aforesaid order, the petitioners herein filed a revision case being Cr. Revision no. 119/2006 which was considered and rejected by the learned Additional Sessions Judge, F.T.C.-I Bhabua. Learned counsel for the petitioners submits that admittedly an appeal had already been preferred against the judgment and decree rendered by the Trial Court (Sub-Judge-I, Kaimur at Bhabua) and as such during the pendency of appeal, the learned Magistrate ought not have passed the impugned order. The learned revisional court has considered all aspects of the matter and has come to a conclusion that the materials on record conclusively indicate the title and possession of the opposite party no. 2 (first party). Merely because an appeal is filed and pending, shall not preclude the court below in passing the impugned order 3.8.2006, which does not suffer from any illegality and/or lack of jurisdiction. This court on consideration of the submissions and after going through the materials on record is convinced that the 4 learned revisional court has rightly come to the said conclusion and dismissed the revision application. Order passed on the revision filed by the petitioners cannot be said to be wholly perverse and/or patently illegal particularly in the backdrop of the fact that the order dated 22.7.2006 withdrawing the proceeding under Section 145 Cr.P.C. at the instance of the first party (opposite party herein) is not under challenge. In that view of the matter, this court finds no merit in this application. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )