IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10200 of 2010 DEO NARAYAN YADAV, S/O LATE BARISH LAL YADAV, PERMANENT OF R/O VILLAGE GAMHARIYA,P.O. SUKHASAN, P.S. AND DISTRICT- MADHIPURA,PRESENT R/O VILLAGE BHINDUA TOLA SHREEPUR GOBRAHI, P.S. KUSHESHWAR ASTHAN, DISTRICT- DARBHANGA. ……………Petitioner Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Home ,Govt. Of Bihar, Old Secretariat, Patna. 2. The Officer Incharge, Kusheshwar Asthan- P.S., District- Darbhanga. ………. Respondent 1st Set. 3. Pravin Yadav, S/O Late Yadu Prasad Yadav, R/O Village Bhindua Tola Shreepur Gobrahi, P.S. Kusheshwar Asthan, District- Darbhanga. ………. Respondent 2nd Set. 4. Savitri Devi, W/O Late Sukhdev Yadav , D/O Late Barish Lal Yadav. 5. Umesh Kumar Yadav, 6. Dinesh Kumar Yadav, 7. Malay Kumar Yadav, All sons of Late Sukhdev Yadav And Savitri Devi, R/O Village Murli, P.S. Salkhuwa, P.O.- Rasulpur Via Sonbarsa Raj,District- Saharsa. ……….. Respondent 3rd Set. 8. Arun Kumar 9. Amarendra Kumar Yadav, Both sons of Deo Narayan Yadav 10. Raj Narayan Yadav, S/O Late Barish Lal Yadav, 11. Ram Pravesh Yadav, S/O Raj Narayan Yadav, 12. Most. Bijali Devi, W/O Late Nageshwar Yadav, 13. Abhay Kumar Yadav, 14. Promod Kumar Bhushan, Both sons of Late Nageshwar Yadav, 15. Most. Krishna Devi, W/O Late Ratneshwar Yadav, 16. Anil Kumar Yadav, 17. Sunil Kumar Yadav, Both sons of Late Ratneshwar Yadav, all permanent R/O village Gamhariya, P.O.-Sukhasan,P.S. and District-Madhipura,Present R/O Village Bhindua Tola Shreepur Gobrahi, P.S. Kusheshwar Asthan, District- Darbhanga. ……….. Respondent 4th Set. 18. Smt. Saroja Devi, W/O Ramashray Singh, R/O Village Manrepur, P.S. Saraiya,District- Muzaffarpur. 19. Smt. Krishna Devi, W/O Kameshwar Singh, R/O Village And P.S. Sarmaura, Sub Division Barh, District- Patna. 20. Sri Shyam Nandan Singh, S/O Late Srinandan Prasad Singh, R/O Village Kabatgama,P.S.- Singhiya, District- Darbhanga. ………. Respondent 5th Set. 2 For the petitioner : Mr. Rajiv Roy, Advocate. For the State : Ms. Alka Verma, AC to AAG-IX For the Respondent no. 3 : Mr. Manish Kumar, Advocate. ----------- 3. 25-08-2010 1. Heard learned counsel for the petitioner and learned counsel for the State and its authorities as well as the main contesting Respondent no. 3. 2. This writ petition has been filed by the plaintiff- petitioner challenging order dated 15-05-2010 (Annexure-3) by which Subordinate Judge-II, Benipur, Darbhanga directed the local police (Respondent no. 2) to release 61 bags of wheat in favour of Respondent no. 3, who was Defendant No. 8 in T.S. NO. 21 of 2004. 3. The aforesaid suit was filed by the plaintiff- petitioner for declaration that the of suit land belonged to the plaintiff jointly with other three sons of Late Barish Lal Yadav and that the plaintiff-petitioner was a co-sharer in the suit land whereas Defendant no. 1 had no right or title over the same. The suit was contested by the defendants and after completion of pleadings issues were framed but evidence has not yet started. 4. It further transpires that the plaintiff-petitioner filed an application dated 22-04-2010 whereas defendant-respondent no. 3 filed another application dated 20-04-2010 for releasing 61 bags of wheat in their favour which were harvested from the suit land. Both the aforesaid applications were considered by the court below and by impugned order dated 15-05-2010 the court below found that the said 3 wheat measuring 100 Mounds was a perishable item and hence it must be released in favour of one or the other contestant. 5. It may be noted that the said main contestants were the plaintiff-petitioner as well as defendant-respondent no. 3. , who have filed their respective petitions in the suit for release of the wheat, and the lower court decided the matter in favour of defendant- respondent no. 3 holding that he had better prima facie case. It may be noted that vide order dated 25-07-2008 the appellate authority namely the Additional District Judge-F.T.C. –II, Darbhanga allowed Misc. Appeal No. 19 of 2006 filed by the plaintiff-petitioner with respect to injunction matter after finding that the plaintiff-petitioner had prima facie case. Since the appellate court had decided prima facie case in favour of the plaintiff-petitioner, there was no occasion for the trial court to ignore the said appellate order and pass the impugned order arriving at a contradictory finding. 6. In the aforesaid facts and circumstances both the parties namely plaintiff-petitioner as well as defendant-respondent no. 3 agree that the said wheat having been lying with the said authority namely Officer-in-charge, Kusheshwar Asthan Police Station within the district of Darbhanga (Respondent no. 2), they be asked to sell the said wheat in question and deposit the sale proceed with the court so that it may be paid to the party which may succeed in the suit. 7. In the aforesaid facts and circumstances of the case, the writ petition is disposed of setting aside the impugned order dated 15-05-2010 and directing the court below namely learned Subordinate 4 Judge-Benipur, Darbhanga to ask the police to sell the said 61 bags of wheat and deposit the sale proceed in the court below. This observation must not prejudice the trial of the suit one way or the other. Sujit (S.N.Hussain,J.)