MADAN MISHRA Vs. TRILOKI NATH PANDEY

JUDGEMENT

(1.) THIS is an application under sections 397 and 401 of the Code of Criminal Procedure (in short 'the Code '). It is directed against the order dated 25.10.1997 passed in Case No. 916 of 1996 u/s 144 Cr.P.C. Tr.No. 478 of 1997 u/s 145 Cr.P.C. learned Executive Magistrate, Bagaha, District West Champaran by which he dropped the proceeding running under section 146(1) of the Code and set aside the order of his predecessors in office passed on 29.8.1997 attaching the disputed land under section 146(1) of the Code.

(2.) IT appears that the petitioner had filed an application on 3.8.1996 before the learned Sub - Divisional Magistrate, Bagaha for initiating a proceeding under section 144 of the Code with respect to Kheshra Nos. 227, 228 and 231 measuring 19 Kathas 14 Dhurs situated in village - Ojhawalia. In this petition the petitioner claimed that the aforesaid land was mortgaged in favour of his father Deo Nandan Mishra in the year 1966 by one Sakaldeo Mishra of village Mahuwar Tola Ojhawalia, P.S. Samara. Accordingly the possession over the aforesaid land was handed over to the mortgagee Deo Nandan Mishra. On his death the present petitioner being his son is coming in possession of this land. However, opposite party threatened the petitioner to dispossess him from the disputed land with the help of brute force. On this ground the petitioner under section 144 of the Code was filed.

(3.) ON 15.10.1997 the opposite party filed a petition before the learned Magistrate for dropping the proceeding and also for withdrawing the order of attachment passed on 29.8.1997. In this petition the opposite party pointed out that a title suit with respect to the disputed land was pending before the Civil Court. This suit was filed by opposite party no.1 in which the brother - in -law (Bahnoi) of the petitioner, namely Hari Shankar Mishra is the main contesting defendant. It was numbered as T.S. No. 90/95 and was with respect to the present disputed land. The opposite party had contended that the petitioner of the present case had been set up by the contesting defendant, namely, Hari Shanker Mishra to file the petitioner under section 144 of the Code while in T.S.No. 90/95 plaintiff - opposite party no.1 got injunction order in his favour from the learned Sub -ordinate Judge, Bagaha by his order dated 3.8.1996. In this connection it may be mentioned that according to opposite party no.1 the present petitioner, namely, Madan Mishra is nobody else than the brother -in -law of the contesting defendant, Hari Shanker Mishra. Opposite party had claimed to have purchased the disputed land on 26.6.1995 from one Yasoda Devi. In the suit Hari Shanker Mishra the contesting defendant disclosed that he got the mortgage redeemed. When the plaintiff -opposite party no.1 got the information about the initiation of the proceeding under section 144 of the Code he filed a petition on 25.2.1997 in T.S.No. 90/95 for adding the present petitioner as a party to the said suit. The said petitioner was, however, rejected by the learned Subordinate Judge by his order dated 16.7.1997.