MD MUSLEHUDDIN Vs. MD SALAHUDDIN

JUDGEMENT

(1.) This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing the order of the Sub-Divisional Magistrate, Arrah dated the 14th of March. 1975 drawing up a proceeding under Section 145 of the Code by converting a proceeding under Section 144 into one under Section 145 and attaching the lands in dispute under Section 146 (1) of the Code.

(2.) Petitioners Mohammad Musle-huddin and Mohammad Nayeemuddin and the opposite party Mahammad Salahuddin are full brothers. Their father Abdul Heyat died on the 14th of February, 1975. Abdul Heyat is said to have executed a will and thereafter made a gift of his properties in favour of the petitioners on the 27th of January, 1975. The opposite party filed a petition before the Sub-Divisional Magistrate on the 1st of March, 1975 for action under Section 144 of the Code. He alleged in the petition that on the death of his father Abdul Hevat he and the petitioners inherited all his properties and came in possession of the same. It was also alleged that the opposite party being the eldest son was in actual possession of the lands left by Abdul Heyat and was managing and controlling the same. It was further said that the petitioners on the basis of a forged, fabricated and concocted deed of gift said to have been executed by Abdul Heyat in their favour were creating trouble in peaceful possession of the opposite party over the lands specified in Schedule A of the petition and they were also creating trouble in the peaceful possession of the opposite party over the lands mentioned in Schedule B of the petition and they were ready to loot away the standing crops which were ripe for harvesting. On the basis of this petition the learned Sub-Divisional Magistrate, Arrah drew up a proceeding under Section 144 of the Code against the parties on the same day (1-3-1975). The petitioners filed show cause petition on the 13th of March, 1975 stating inter alia, that Abdul Heyat executed the deed of gift and thereafter on the 27th of January, 1975 gifted the lands to them and they came in possession of the disputed lands during the lifetime of Abdul Heyat by accepting the gift. The petitioners thus denied the claim of the opposite party to have a share in the lands. According to them, the opposite party never got possession over any portion of the disputed lands.

(3.) The learned Sub-Divisional Magistrate on perusal of the show cause and after hearing the counsel of the parties by his order dated the 14th of March. 1975 converted the proceeding under Section 144 into one under Section 145 of the Code and considering the case to be one of emergency attached the disputed lands under Section 146(1) of the Code. It is against this order that this petition has been filed.