DEOMANI SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application, being aggrieved by the order dated 8/10/93 passed by the learned court below in Cr. Revision No. 226/90 by reason of which the said revision preferred by the petitioner was dismissed, the petitioner has moved this Court.

(2.) Before considering the grievance of the petitioner a potrya of the background of facts is necessary: The dispute between the petitioner and respondent No. 2 is in respect of a piece of land appertaining to plot No. 27, Khata No. 17 situated at Jharudih in the district of Dhanbad. In respect of the same land a proceeding under Section 145 Cr. P.C. was initiated between the parties and by order dated 20.8.93 possession of the wife of the petitioner, namely, Smt. Urmila Devi, was declared by the court below. It is not in dispute that against the said order respondent No. 2 moved this Court in revision which was, ultimately, allowed to be withdrawn. After withdrawal of the revision, respondent No. 2 filed title suit No. 54/91 which is pending before the competent court. However, in respect of the disputed land title suit No. 281/78 was filed by the younger brother of the petitioner namely. Ram Pravesh Sharma for declaration and confirmed of possession in respect of the said land. By judgment and decree dated 5.6.84 the competent civil court declared the right, title and possession of the brother of the petitioner. Against that judgment the respondents preferred appeal before the District Judge. The same was allowed by setting aside the judgment of the trial court on the ground of under valuation of the suit property itself. The matter was remitted back to the trial court. However, again by judgment dated 26.11.93 the said suit was decreed in favour of the brother of the petitioner. It is not in dispute that respondent No. 2 again filed first appeal before the learned District Judge, Dhanbad which is still pending.

(3.) It appears that again, proceeding under Section 144 Cr. P.C. was initiated and notices were issued to both the parties. On consideration of the show cause, the proceeding was converted into a proceeding under Section 145 Cr. P.C. At that juncture the petitioner filed an application before the court with a prayer to drop the proceeding. inter alia on the ground that the possession in respect of the disputed land what been declared by a competent civil court in favour of the brother of the petitioner and, as such, the said 145 Cr. P.C. proceeding was not maintainable. By an order dated 23.6.90 as contained in Annexure-4, the learned Sub-Divisional Magistrate rejected the said application of the petitioner. Being aggrieved, the petitioner moved the revisional court in Cr. revision No. 226/90 and by the impugned order dated 8.10.93 the learned revisional court dismissed the said revision application holding that the order impugned before the revisional court was an inter-locutary order. However from the perusal of the impugned order it appears that even though the revisional court dismissed the said revision application but he has given liberty to.the petitioner to raise the points which were taken before the revisional court and it was further observed that the Sub-Divisional Magistrate will consider afresh the entire materials brought on record by the parties to find out whether there had been orders of the competent court with regard to the disputed properties. The revisional court further observed that if there had been any such order in that case, the present proceeding under Section 145 Cr. P.C. could not be continued but that would happen only if the disputed property of the proceeding, in fact, constituted the same property in respect of which orders, if any, had been passed by the competent civil court earlier.