BILKRISHNA RASTOGI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against the order dated 22.9.93, passed by the Sub-divisional Magistrate, Ballia in case no. 86 M of 1978 whereby and where under the proceeding of restoration of possession in respect of the land pursuant to an order passed in a proceeding under section 145 Cr. P. C. has been stayed by the Sub-divisional Magistrate on the ground that a fresh proceeding under section 145 Cr. P. C. is pending with respect to the land in question, which may be adversely affected if the order in the earlier proceeding for delivery of possession is given effect to.

(2.) In short, the case of the petitioner is that on the report of Ballia Police for action under section 144 Cr. P. C. with respect to 5 dhurs of land in Mouza Ballia, Bazar, Thana no. 627, Touzi no. 10119, khata no. 778, khesara no. 2392, the Sub-divisional Magistrate initiated a proceeding under the said provisions and the same was later converted into a proceeding under section 145 Cr. P. C. The said proceeding was finally decided vide order dated 1.6.89, whereunder, as per the provisions contained in sub-section (4) of section 145 Cr. P. C. the petitioner was finally found in possession before being dispossessed and as such the order for restoration of possession was also passed in terms of section 145 (6) Cr. P. C. on 1.6.89. It is stated that against the said order the opposite party no. 2 preferred a Cr. Revision no. 124/89 before the Sessions Judge, Begusarai which was dismissed by order dated 4.12.89. Thereafter a suit was filed, by the opposite party no. 2 for declaration of title vide T. S. no. 185 of 89 in the Court of Munsif 1st, Begusarai and and an injunction was also prayed against the aforesaid order dated 1.6.89. The prayer for injunction was rejected vide order dated 15.1.93, a photo copy whereof has been annexed as annexure. 3. It appears that opposite party no. 2 and others preferred Misc. appeal no. 3/93. Against the said order, which was also dismissed by the Additional District Judges 3, Begusarai by order dated 27.4.93. The opposite party no. 2 thereafter filed C. R. no. 1350 of 93 which was also rejected by this Court, vide order dated 7.9.93. A photo copy of the certified copy of the said order has been annexed as annexure 5.

(3.) In the meantime, after bifurcation of Ballia Subdivision a petition for restoration of possession before the Subdivisional Magistrate, Ballia was filed on behalf of the petitioner. However. O. P. no. 2 and others again filed a petition for initiation of a proceeding under section 144 Cr. P. C. before the Sub-divisional Magistrate, Ballia with respect to 2 kathas of land which included ,5 dhurs of land in respect of which final order was passed regarding restoration of possession in the proceeding under section 145 Cr. P. C. The subsequent proceeding was also converted into the proceeding under section 145 Cr. P. C. in which the O. P. no. 2 filed an application that since the proceeding under section 145 Cr. P. C. is pending in respect of 2 kathas of land of S P. no. 2329 which included 5 dhurs of land of the previous proceeding, the restoration of possession over 5 dhurs of land be stayed and accordingly the impugned order was passed,