HARENDRA SINGH Vs. RAJENDRA SINGH

JUDGEMENT

(1.) Second party petitioners have come to this Court against a final order in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the 'Act') relating to a dispute over 10 Bighas 5 kathas and 18 dhurs of land situated in village Dharhara, Police Station Mairwa in the district of Siwan, over which the members of the first party have been declared to be in possession as bataidars. The 2nd party denied the claim of the first party and claimed their complete possession over the dispute land in their own right. In my view, the impugned order cannot be sustained in law because of two reasons that 1 pose to deal hereafter.

(2.) It is well settled that the claims of the bataidars have to be adjudicated in accordance with the procedures prescribed under Section 48 -E onwards of the Bihar Tenancy Act (B. T. Act) and primarily the right accrues to a bataidar when he is thereatened with eviction at the hands of the superior raiyats because a bataidar cannot be evicted except on the grounds which the law provides for such eviction. Once a proceeding is initiated under Section 48 -E of B. T. Act, civil suit and proceedings under section 145 of the Code are barred. If there is no proceeding under Section 48 -E of the B. T. Act, a suit does become maintainable or a proceeding under Section 145 of the Code can be initiated to prevent breach of the peace which on the initiation of a proceeding under Section 48 -E of the B.T. Act will stand effaced and cannot be continued.

(3.) It is common ground that after the proceeding under Section 145 of the Code had been initiated, the proceeding under Section 48 -E of the B. T. Act was also sought to be initiated by the first party which at the initial stage was refused only to be initiated on the orders of the superior authority and that proceeding is pending disposal. In this situation, the only remedy left to the learned Magistrate was to resort to other sections of the Code under which steps could be taken to prevent breach of the peace : like Sections 107 and 144 of the Code and not Section 145.