Patna High Court
Mahesh Upadhyay vs The State Of Bihar on 1 May, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32212 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-
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1. Mahesh Upadhyay Son of Late Sheobansh Upadhayay Resident of Village -
Rani Talab, Ps- Rani Talab, Distt- Patna
2. Rajandhari Upadhayay Son of Late Jagdish Upadhyay Resident of Village -
Rani Talab, Ps- Rani Talab, Distt- Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. Prahalad Upadhyay
3. Lakshman Upadhyay
4. Munna Upadhyay All opposite party no. 2 to 4 are sons of Late Ram Janam
Upadhyay
5. Narayan Upadhyay
6. Narendra Upadhyay
7. Ram Raj Upadhyay All opposite party no. 5 to 7 are sons of Late Girja
Upadhyay
8. Baban Upadhyay
9. Shiv Nandan Upadhyay Both opposite party no. 8 and 9 are sons of Late
Birja Nand Upadhyay @ Brijnandan Upadhyay
10. Raja Ram Upadhyay son of Late Hari Upadhyay
11. Shambhu Upadhyay
12. Ram Bachan Upadhyay Both opposite party no. 11 and 12 are sons of Late
Baijnath Upadhyay
13. Sanjay Upadhyay
14. Vijay Upadhyay Both opposite party no. 13 and 14 are sons of Late Ram
Pravesh Upadhyay All opposite party no. 2 to 14 are resident of village-
Jitan Chhapra, P.O. Rajipur Police Station- Rani Talab District- Patna
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Sr. Advocate
: Mr. Sanjay Kumar Singh, Advocate
: Mr. Shailesh Kumar, Advocate
For OP No. 2 to 14 : Mr. K.N. Choubey, Sr. Advocate
: Mr. Sanjay Kumar Singh, Advocate
: Mr. Ambuj Nayan Choubey, Advocate
For the Opposite Party/s : Mr. Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
2/12
Date : 01-05-2024
Heard learned counsel for the petitioners
and learned counsel for the respondents.
2. The present quashing petition has been
preferred to quash the order dated 09.05.2016 as
passed in Criminal Revision No. 407 of 2002 by learned
Additional Sessions Judge, Vth, Danapur, where, revision
petition filed by opposite parties against order dated
21.05.2002
as passed by learned S.D.M. Paliganj in
Case No. 505 (M) of 1999, in a proceeding initiated
under Section 145 of the Code of Criminal Procedure (in
short Code) declaring possession of the petitioners upon
the land in dispute and debarring the opposite parties
from going over the said land has been allowed and
order dated 21.05.2002 passed by learned S.D.M.
Paliganj was set aside.
3. The brief story of prosecution is that one
Ayodhya Upadhyay was the ancestor of the petitioners
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
who had three sons namely Nandkeshwar Upadhyay,
Brahmdeo Upadhyay and Narsingh Upadhyay, out of
which Brahmdeo Upadhyay and Narsingh Upadhyay died
issue less while Nandkeshwar Upadhyay had six sons
namely Suryanath Upadhyay, Ram Ekbal Upadhyay,
Ram Kripal Upadhyay, Parasnath Upadhyay, Ram Naresh
Upadhyay and Dudhnath Upadhyay, out of which
Suryanath Upadhyay, Ram Kripal Upadhyay, Ram
Naresh Upadhyay and Dudhnath Upadhyay died issue
less, while Ram Ekbal Upadhyay had three sons namely
Jagdish Upadhyay, Deobansh Upadhyay, Sheobansh
Upadhyay and Parasnath Upadhyay had two sons namely
Ram Upadhyay and Sham Upadhyay. The petitioner are
members of this genealogical table and the land in
question are their khatiyani and ancestral land, while the
opposite parties are neither members of this
genealogical table nor in any manner concerned with
disputed land in question. But the opposite parties want
to grab away the ancestral property of the petitioners.
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
The genealogical table issued by the Circle Officer,
Dulhin Bazar, Patna is the evidence of that.
4. Learned senior counsel Mr. Baxi S.R.P.
Sinha, while appearing on behalf of petitioners submitted
that impugned order was passed in such a manner as it
was passed by the Appellate Court, without deciding the
possession of either of the parties, allowing the 'threat of
breach of peace' to continue. It is pointed out that the
Revisional Court while setting aside the order must have
decided the possession of either of the parties. Learned
senior counsel further submitted that if Revisional Court
was satisfied with the fact that opposite
parties/revisionists are from the common ancestor, qua,
petitioners and also Title Suit No. 44 of 1922, which was
passed on the basis of joint compromise vide order
dated 17.02.1923 was not considered during the
proceeding, despite of the fact that it was pleaded by the
opposite parties, matter must be remanded back for
consideration of those documents to the Court of learned
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
SDM to pass fresh order rather than to keep issues
hanging open between the parties, qua, their possession,
which is the ultimate object of a proceeding under
Section 145 of the Cr.P.C.
5. Learned senior counsel Mr. K.N. Chaubey,
while appearing for opposite parties submitted that once
substantial finding regarding land in dispute has already
settled long back through Title Suit No. 44 of 1922,
initiation of present proceeding under Section 145 of the
Code regarding said piece of land is not permissible as
per settled law. It is further submitted that initiation of
present proceedings under Section 145 of the Code is
purely on imaginary grounds to disturb the possession of
opposite parties, which has already been settled through
Title Suit No. 44 of 1922. It is submitted Title Suit No.
44 of 1922 clearly shows that both parties are common
ancestor of one Haribansh Upadhyay.
6. While concluding the argument learned
senior counsel submitted that if matter is remanded to
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
learned Trial Court, facts to ponder upon are :-
6.1. Examination regarding common ancestor
of Haribansh Upadhyay, which is specifically denied on
oath by the petitioners and also finding of Title Suit No.
44 of 1922 be taken into consideration, without which
just and proper adjudication is not possible. It is further
submitted that finding of learned SDM Paliganj, vide
order dated 21.05.2002 also appears bad in eyes of law
as possession was granted to petitioners by taking note
of the fact that lands in dispute are "khatiyani land" of
petitioners by ignoring the finding of Title Suit No. 44 of
1922.
7. Be it so, this Court finds force in
submission of learned senior counsel appearing for
petitioner that by setting aside the order of learned
SDM, Paliganj dated 21.05.2002, possession of either of
the parties were left open, which is against the object of
Section 145 of Code, where matter ought to be
remanded back to the learned Trial Court to consider
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
evidence, which was not taken into consideration, while
passing order dated 21.05.2002.
8. It would be apposite to reproduce the
Section 145 of the Code which reads as under :-
145. Procedure where dispute
concerning land or water is likely to
cause breach of peace.-- (1) Whenever
an Executive Magistrate is satisfied from a
report of a police officer or upon other
information that a dispute likely to cause a
breach of the peace exists concerning any
land or water or the boundaries thereof,
within his local jurisdiction, he shall make
an order in writing, stating the grounds of
his being so satisfied, and requiring the
parties concerned in such dispute to attend
his Court in person or by pleader, on a
specified date and time, and to put in
written statements of their respective
claims as respects the fact of actual
possession of the subject of dispute.
(2) For the purposes of this section, the
expression "land or water" includes
buildings, markets, fisheries, crops or other
produce of land, and the rents or profits of
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
any such property.
(3) A copy of the order shall be served in
the manner provided by this Code for the
service of a summons upon such person or
persons as the Magistrate may direct, and
at least one copy shall be published by
being affixed to some conspicuous place at
or near the subject of dispute.
(4) The Magistrate shall then, without
reference to the merits or the claims of any
of the parties to a right to possess the
subject of dispute, persue the statements
so put in, hear the parties, receive all such
evidence as may be produced by them, take
such further evidence, if any, as he thinks
necessary, and, if possible, decide whether
any and which of the parties was, at the
date of the order made by him under sub-
section (1), in possession of the subject of
dispute:
Provided that if it appears to the Magistrate
that any party has been forcibly and
wrongfully dispossessed within two months
next before the date on which the report of
a police officer or other information was
received by the Magistrate, or after that
date and before the date of his order under
sub-section (1), he may treat the party so
dispossessed as if that party had been in
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
possession on the date of his order under
sub-section (1).
(5) Nothing in this section shall preclude
any party so required to attend, or any
other person interested, from showing that
no such dispute as aforesaid exists or has
existed; and in such case the Magistrate
shall cancel his said order, and all further
proceedings thereon shall be stayed, but,
subject to such cancellation, the order of
the Magistrate under sub-section (1) shall
be final.
(6) (a) If the Magistrate decides that one
of the parties was, or should under the
proviso to sub-section (4) be treated as
being, in such possession of the said
subject, he shall issue an order declaring
such party to be entitled to possession
thereof until evicted therefrom in due
course of law, and forbidding all disturbance
of such possession until such eviction; and
when he proceeds under the proviso to sub-
section (4), may restore to possession the
party forcibly and wrongfully dispossessed.
(b) The order made under this sub-
section shall be served and published in the
manner laid down in sub-section (3).
(7) When any party to any such
proceeding dies, the Magistrate may cause
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
the legal representative of the deceased
party to be made a party to the proceeding
and shall thereupon continue the inquiry,
and if any question arises as to who the
legal representative of a deceased party for
the purposes of such proceeding is, all
persons claiming to be representatives of
the deceased party shall be made parties
thereto.
(8) If the Magistrate is of opinion that
any crop or other produce of the property,
the subject of dispute in a proceeding under
this section pending before him, is subject
to speedy and natural decay, he may make
an order for the proper custody or sale of
such property, and, upon the completion of
the inquiry, shall make such order for the
disposal of such property, or the sale-
proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit,
at any stage of the proceedings under this
section, on the application of either party,
issue a summons to any witness directing
him to attend or to produce any document
or thing.
(10) Nothing in this section shall be
deemed to be in derogation of powers of
the Magistrate to proceed under section
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
9. In view of aforesaid factual and legal
discussions, impugned order dated 09.05.2016 as
passed in Criminal Revision No. 407 of 2002, as passed
by learned learned Additional Sessions Judge, Vth,
Danapur is hereby quashed and set aside with a
direction to learned SDM Paliganj also to pass a fresh
order after verifying the facts regarding common
ancestor of the parties and also facts of Title Suit No. 44
of 1922. It is made clear that if it appears to learned
SDM Paliganj, that right of the parties had already
settled,qua, their title and possession in view of Title
Suit No. 44 of 1922, which was decided on the basis of
compromise vide order dated 17.02.1923, regarding
disputed piece of lands any proceedings under Section
145 of the Code may not be initiated and as such
aforesaid issues be examined first as preliminary issues
before initiating the proceedings, as raised by opposite
parties.
Patna High Court CR. MISC. No.32212 of 2016 dt.01-05-2024
10. The application stands allowed, in aforesaid
terms.
11. Let a copy of this judgment be sent to
learned Trial Court/Revisional Court, immediately,
alongwith LCR, if any.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR AFR
CAV DATE
Uploading Date 02.05.2024
Transmission Date 02.05.2024
