IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.26725 of 2004 1. Smt. Smirti Krishnan, W/o Late Col. Vijay Krishnan, resident of 81/1 New Singh Vihar, P.S. Mhow, District Indore (M.P.). 2. Prashant Kumar, S/o late Binay Kumar Jha, Resident of 9 E, Morabadi, Dutta Villa Compound, New Area, Ranchi, Jharkhand. . . . . . Petitioners Versus 1. THE STATE OF BIHAR 2. Nago Sharma Son of Mangal Sharma 3. Prakash Sharma Son of Nago Sharma 4. Arun Sharma Son of Nago Sharma 5. Ranjit Sharma Son of Nago Sharma 6. Nand Kishore Sharma Son of Bhagwan Sharma 7. Akhildeo Sharma Son of Keso Sharma 8. Naina Dhar Sharma Son of Ganauri Sharma 9. Rajendra Sharma Son of Hari Sharma 10. Janardan Sharma Son of Hari Sharma. All resident of Village- Kishandaspur, P.S. Buduchak (Kahalgaon), Kahalgaon, District – Bhagalpur. . . . . . Revisionist / 2nd Party / Opposite parties. ----------- 23/ 08.01.2010 Heard learned counsel for the petitioners and the State. The petitioners pray for quashing the order dated 19.07.2004 passed by 1st Additional Sessions Judge, Bhagalpur in Cr. Revision case no. 225 of 1992 setting aside the order dated 09.07.1992 passed in Tr. No. 59 of 1992 in a proceeding under Section 145 of the Cr.P.C. The original petitioner, Smt. Saroj Jha, died after filing of the instant application and as such her heirs were substituted. Late Smt. Saroj Jha filed a petition dated 09.02.1989 before Executive Magistrate under Section 144 of Cr.P.C. apprehending breach of peace by the opposite parties named in the petition. Subsequently, on receipt of police report, a proceeding under Section 145 of Cr.P.C. was initiated on 06.05.1989. The case of the petitioner is that land in question was acquired by her husband, late Binoy Kumar Jha, by registered sale - 2 - deed from one Bhola Ram on 16.05.1979. Her husband died in the year 1987. Thereafter the petitioner and her daughter namely Smirti Devi inherited the entire properties in Mauza Mathurapur commonly known as Shiv Narayanpur Hat. Late Saroj Jha, the original petitioner, executed duly registered general power of attorney in favour of her daughter on 24.04.2003. Some of the persons, who were not granted annual Satta for working on the land, illegally got sale deeds from one Prashant Kumar, the son of the original petitioner, in respect of some of such land. The petitioners state that late Saroj Jha has stated in the petition that Prashant Kumar has separated long after taking his share and as such he did not have any right to execute any sale deed. The Executive Magistrate, Kahalgaon by his order dated 09.07.1992 passed in Misc. Case No. 271 of 1989 declared the possession of petitioner on the land. The respondents went in revision. It would appear from the revisional order that disputes relates to 9 ½ decimals of plot no. 123 appertaining to khata no. 311, having total area 60 decimals only, which they have purchased from one Prashant Kumar, son of the original petitioner, Smt. Saroj Jha. The revisional court rightly held that only a court of competent civil jurisdiction can decide whether Prashant Kumar, being son of the original petitioner, late Smt Saroj Jha, has right and title to execute sale deeds in favour of the revisionists, who are respondents, in this application. However, it appears that the revisional court on the aforesaid basis held that petitioner would be - 3 - deemed to be in possession of 9 2/7 decimals of land which they had got through registered sale deeds from son of the original petitioner, Smt. Saroj Jha. The view taken by the revisional court, in my opinion is erroneous. A proceeding under Section 145 of Cr.P.C. cannot be decided on deemed possession, but on actual possession. The sale deeds would be one of the considerations but cannot be the sole consideration for deciding the possession. The learned revisional court ought to have considered other documents as well as the evidence of witnesses while deciding the factum of possession. Thus, the impugned order passed by the Revisional Court dated 19.07.2004 in Cr. Revision no. 225 of 1992 is set aside and the matter is remitted back to the 1st Additional Sessions Judge, Bhagalpur for fresh consideration in accordance with law. This court, however, makes it clear that it is not expressed any opinion on the merit of the claim of either of the side. This application is allowed with direction mentioned therein. Uday/ (Samarendra Pratap Singh, J.)