VIDYOTMADEVI Vs. ARJUN PRASAD

JUDGEMENT

(1.) The second party-petitioner in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) has filed the present application for dropping the proceeding primarily on the ground that in view of the pendency of the title suit being Title Suit No. 438/88 with regard to the land in dispute in the court of Munsif, Siwan, the proceeding is not maintainable in law. The learned Single Judge of this Court has referred the matter to a Division Bench to consider as to whether the decision rendered by the Division Bench of this Court in the case of Shamrati Kuer (Mst.) v. Jank Saran Singh reported in 1981 PLJR 166 is still a good law in view of the judgment of the Supreme Court in the case of Ram Sumer Puri Mahant v. State of U.P. & Others reported in AIR 1985 SC 472.

(2.) With a view to appreciating the point involved in this case the necessary facts are as follows: The disputed lands measures 1 Khata 12 Dhur and 2 Dhurkis consisting of Survey plot Nos. 390 & 391 under Khata No. 131 in village-MahaDewa, P.S. Mahadewa, District Siwan, over which two residential flats has been constructed. The first party-opposite party claims the aforesaid land by virtue of a registered deed of gift executed by Chandeshwar Prasad on 7.12.87 and registered on 19.3.88 after his death on 19.3.88. The second party petitioner who is the widow of late Chandeshwar Prasad claims the property on her behalf as well as on behalf of her minor sons as legal heirs of late Chandeshwar Prasad after his death. The first party-opposite party filed an application before the learned Magistrate claiming possession over the land and alleged apprehension of breach of peace at the bands of the second party- petitioner. The learned Sub-Divisional Magistrate initiated a proceeding under section 144 of the Code and on 25.10.88 he converted the proceeding under Section 145 of the Code which means he has initiated a proceeding under Section 145 of the Code. Thereafter the second party-petitioner and her son Arvind Prasad have filed a Title Suit No. 438/88 on 4.12.86 against the first party-opposite party for declaration that the deed of gift alleged to have been executed by Chandeshwar Prasad is a forged and fabricated document, for confirmation of possession over the disputed land ana for grant of injunction restraining the first party-opposite party from dispossessing them from the suit land.

(3.) Thus it is an admitted position that a Title Suit between the parties is pending with regard to the disputed land though it was filed subsequent to the initiation of proceeding under Section 145 of the Code.