SETU BAND PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing the order dated 23.6.1999 passed by the Sub-Divisional Magistrate, Mohania (respondent No. 2) whereby and whereunder, he without hearing the petitioners and respondent 3rd set and without issuing any notice upon them directed the officer-in-charge, Mohania to provide necessary co-operation and security to respondent 2nd set for cultivation and also for quashing the order dated 29.7.1999 passed by respondent No. 2 rejecting the prayer of petitioners for re-calling his order dated 23.6.1999.

(2.) According to the case of petitioners certain lands described in paragraph 3 of the application (hereinafter to be referred to as land in question') belonged to one Radha Pathak and after his death it was jointly inherited by his widow Genda Kuwar and daughter Yashoda Kuwar, who in the year 1961 jointly executed 'Hibanama' in favour of petitioner No. 1 which was accepted by him and on the basis of this Hibanama petitioner No. 1 came in possession of the land in question, his name was mutated in respect of this land and he has been paying rent and regularly getting rent receipts (Annexure-2). Subsequently, petitioner No. 1 sold some portion of land in question to petitioner Nos. 2, 3 and respondent 3rd set, who are in possession over the purchased portions.

(3.) The further case of petitioners is that a petition for grant of probate was filed by Yashoda Kuwar before 2nd Additional District Judge, Bhabhua being Probate Case No. 27/1 of 1982/90 on the basis of an alleged will executed by Radha Pathak and during the pendency of the probate case Yashoda Kuwar died and in her place Dulhin Ram Dulari Devi, wife of respondent 2nd set, got her name substituted and on 16.11.1995 after hearing the parties this probate case was dismissed by the learned 2nd Additional District Judge, Bhabhua. Dulhin Ram Dulari Devi filed First Appeal No. 814 of 1995 before this Court which is still pending. She again got a proceeding under Section 144, Cr PC initiated against the petitioners and respondent No. 3rd set in the Court of Sub-Divisional Magistrate, Mohania, who after hearing the parties restrained 1st party respondent No. 2 from interfering in the possession of the petitioners and respondent 3rd set. Dulhin Ram Dulari Devi apart from filing the aforesaid case under Section 144. Cr PC also filed Probate Case No. 25 of 1996 before the Court of Subordinate Judge-1, Kaimur, Bhabhua, impleading the State of Bihar as opposite-party for grant of Probate or Letters of Administration on the basis of an alleged registered Will, dated 9.2.1982 said to have been executed by Yashoda Kuwar and the learned Subordinate Judge by ex parte order, dated 18.9.1996 passed in Probate Case No. 25/96 allowed the case and granted probate with respect of land in question. The petitioners and respondent 3rd set against the aforesaid order of the learned Subordinate Judge passed in Probate Case No. 25/96 filed a petition for revocation of probate certificate/letters of administration and this petition has been numbered as Misc. Case No. 29/97 which is pending for final adjudication before the Court of 1st Subordinate Judge, Bhabhua. Thereafter, Dulhin Ram Dulari Devi filed a case numbered as 259/99 before the Court of Sub-Divisional Magistrate, Mohania, against the petitioners and respondent 3rd set for grant of Police help in cultivation over the land in question and her prayer was allowed by the learned Sub-Divisional Magistrate, Mohania, by order dated 23.6.1999 and when the petitioners and respondent 3rd set made prayer for recalling this order their prayer was rejected by order, dated 29.7.1999 passed by the learned Sub-Divisional Magistrate, Mohania (Annexure-6).