SHAMBHU NATH GHOSH Vs. LAKSHMI RANI GHOSH

JUDGEMENT

(1.) The hearing stems from an application filed by the petitioner praying for setting aside the order dated 23.01.2004 passed by the learned Sub- Divisional Magistrate (Executive), Howrah in M.P. Case No. 2087 of 2003.

(2.) The petitioner's case is that he being a co-owner in respect of the property as described in Schedule 'A' obtained a preliminary decree in Partition Suit being T.S.No. 73 of 1990 in the Court of learned Assistant District Judge, now Civil Judge (Sr. Div.), 2nd Court, Howrah where his 13/ 48th share was declared, and it is now pending for Partition Commissioner's proceeding and final decree. As the O.P. tried to raise a massive construction on the said property illegally which gave rise to a serious breach of public peace and O.P. No. 12-Developer, illegally completed a multi-storeyed building particularly on Plot No. 319 of Mouza Liluah, Howrah, he filed a M.P. Case being No. 2399 of 2003 where police is yet to submit report. In M.P. Case No. 2087 of 2003, O.C., Liluah P.S. submitted a report on 16.09.2003 and after hearing on 21.08.2004 the learned Magistrate dropped the proceeding and rejected the Naraji petition of the petitioner against police report, on the sole ground that as Title Suit being No. 73 of 1990 is pending in a Civil Court between the parties on the self-same matter, two parallel proceedings cannot continue.

(3.) Being aggrieved by the dissatisfied with the said order, the present application has been filed.