BAIJNATH CHOUBEY Vs. RAM EKBAL CHOUBEY

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for quashing the proceeding under section 145 of the Code, in which the disputed land has been attached and certain consequential order has been made.

(2.) The parties to the application are very close relations. Sri Kishun Choubey, Paltan Choubey, Purushotam Choubey and Deomuni Choubey were four brothers. In the lower court a proceeding under section 145 of the Code was initiated on an application filed by persons who represented the heirs of Paltan Choubey, Purushotam Choubey and Deomuni Choubey as first party. The heirs of fourth brother Sri Kishun Choubey were the second party there. In this Court some of the members of the second party in the lower court are petitioners and the rest are opposite party second and third ets. The members of the first party in the lower court are opposite party first set in this Court.

(3.) On 17th November, 1980, the opposite party first set (in this Court) filed two applications (annexures 1 and 1-A to the petition) before the Sub-divisional Magistrate, Sasaram. In the first application it was said that in 1971 a partition suit had been filed for partition of the properties amongst the heirs of the four branches mentioned above. That partition suit, however, abated on account of the consolidation proceeding under operation to the area. Since, however, there could not be partition by metes and bounds and the parties could not pull on together, it was decided that the cultivation would be managed by a particular member of the family who would render accounts and after deducting the cost of cultivation would distribute the produce amongst the co-sharer, according to their shares. According to the said arrangement, the land in dispute was under cultivation of the members of opposite partj first set who were co-sharers to the extent of 3/4th share. It was, however, said that though they had cultivated the land and grown paddy therein, the heirs of the fourth brother (co-sharers to the extent of 1/4th share only) were cut to harvest the paddy and unless immediate steps were taken there was danger of crops being looted away. Prayer was, therefore, made tor starting a proceeding under section 145 of the Code and attaching the lands under section 146 of the Code and also for getting the crops harvested through machinery of the court. The second petition also disclosed that member of 2nd party were bent upon cutting the paddy and specific prayer had been made for getting the paddy harvested sold and for getting the sale-proceeds depasted in the treasury. The area of the land involved is about 75 acres. The details are there in annexure '1'.