CHANDRIKA TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners who alongwith two others have been made to figure as accused in Jogapatti P.S. Case No. 9 of 2004 have through this application prayed for the quashing of the order dated 1.12.2006 passed therein by the learned Chief Judicial Magistrate, West Champaran at Bettiah, whereby and whereunder he has taken cognizance of offences under Sections 143, 144, 149, 323, 379, 488, 384, 104 and 109 I.P.C.

(2.) ONE Banhu Mian, impleaded herein as O.P. No. 2, submitted a written report before the police on 18.1.2004 inter alia stating that he was the owner of a piece of land measuring 18 kathas 8 dhurs appertaining to plot nos. 48 and 52 which had devolved upon him from his ancestors which he had sold to Vidya Yadav for Rs. 25,000/ - and which had been returned to him at the behest of notorious criminal Birbhan Yadav and thereafter the same remained in his possession. It is alleged that on 15.1.2004 the petitioners alongwith a few others came to his village, forcibly captured a tractor from the neighbourhood and forcibly cultivated his aforesaid lands. Accordingly, a prayer was made to take appropriate action against the accused persons. It has been submitted on behalf of the petitioners that the disputed plots were admittedly recorded in khata no. 34 of village Fatehpur which was a joint khata of Madan Gopal Pandey and his brothers Ganga Pandey, Mathura Pandey and Sanjay Pandey and plot nos. 48 and 52 were recorded in their joint possession but inadvertently the name of one Asharaf Jolha was shown as the mortgagee in Sikmi khata no. 4. However, after the revisional survey the mortgage of Asharaf Jolha was redeemed and since then the aforesaid raiyats have been coming in possession over the said lands. A private partition took place between the brothers whereby the disputed lands were allotted to the share of Ram Pujan Pandey, the son of Mathura Pandey. This was followed by Partition Suit No. 78 of 1959 preferred by the wife of Madan Gopal Pandey with Ram Pujan figuring as defendant no. 2 and the same was decreed on compromise whereby plot nos. 48 and 52 were allotted to the share of Ram Pujan Pandey. It is said that Ram Pujan died issueless and his sole heir was Chandrika Tiwary (petitioner no. 1) the son of his sister (Bhagina) and he came in exclusive possession thereof and his name was mutated and he paid rent to the State.

(3.) IT has further been submitted that the informant -O.P. No. 2 is a naxalite and he and his colleagues are always on the look out to grab the lands of others and accordingly taking advantage of the wrong entry of the name of Asharaf Jolha, he filed B.T. Act Case No. 7 of 2004 -05 claiming to be a bataidar of petitioner no. 1 since before the revisional survey but the same was dismissed on a finding that the claim of bataidari was frivolous. Not satisfied therewith, O.P. No. 2 next filed Title Suit No. 249 of 2004 seeking declaration of title over the disputed lands on a claim of being a settled raiyat having given up his initial claim of being a bataidar. The suit was dismissed on 27.7.2006 as being not maintainable. Title Appeal No. 16 of 2006 was filed and is pending.