NASRULLAH KHAN @ MUSAN KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD the parties.

(2.) THE present application is primarily directed against an order converting a 144 Cr.P.C. proceedings into a 145 Cr.P.C. proceeding.

(3.) IT appears that a dispute has arisen in respect of one of the properties which is subject matter of partition suit as between the two brother i.e. Abdullah Khan and Habibur Rahman. This has led to institution of 144 Cr.P.C. proceeding and then 145 Cr.P.C. proceeding which are challenged before this Court. It is submitted that when all the parties in respect of the properties in question are before the civil court in a partition suit, the proper remedy for a person claiming possession or asserting possession as against the other would normally be the civil court, specially where jointness is accepted. Once jointness is accepted then so long as there was any partition by metes and bounds every member has a right in every part of the property. It is submitted that if ultimately an order has to be passed under Sec.145 Cr.P.C. what would be the effect of the said order. If it declares possession of one party in respect of the joint family properties then it would virtually be passing a decree of partition and granting possession which is not the scope and jurisdiction of the authorities under Sec. 145 Cr.P.C, the right of individual member in a joint family property crystalises to a specific member only for a decree of partition. Till then they would in case of dispute be under the supervision of civil court which has all powers of injunction to maintain peace and harmony amongst the parties.