Decided on November 13,1952



Sinha, J - (1.) THE learned Sub-divisional Magistrate of Aurangabad has drawn up a proceeding Under Section 107, Criminal P. C. against the petitioners, who were second party to the proceeding. This application, is directed against that order for quashing the same.
(2.) IT is contended by Mr. Haranandan Singh, on behalf of the petitioners, that as the dispute relates to land, Section 145, Criminal P. C. was the appropriate provision & that if proceedings had to be started Under Section 107 of the Code, the proceedings should have been started against both the parties. The opposite party urges that there is absolutely no dispute about the possession of any land and that the petitioners have for some other reason taken into their head to disturb the possession of the opposite party and to create troubles. According to the petitioners, Khata Nos. 100, 141, 101 & 142 had been purchased in execution case No, 698 of 1937 by one Mitrajit Singh, a mokarrarl-dar & by a sale deed dated 28-3-1940, the said Mitrajit Singh had sold the lands in those khatas to Jugalkishore, father of Harbans. It is to be mentioned that the petitioners (second party to the proceeding) are Amlas and servants of Harbans. In regard to khata No. 166, it is said on their behalf that this was purchased in another execution case by the decree-holder, Jugalkishore who had obtained a decree for rent against Gajadhar & others : Gajadhar was the father of opposite party Nos. 1 & 2. It is further contended that delivery of possession in regard to these khatas was taken by the auction-purchasers. In 1947, applications were made by the tenants in respect of a very large area of land, about 1000 bighas, including the lands mentioned above, for reference to the Bakasht Board under the Bihar Bakasht Disputes Settlement Act, 1947 (Act 13 of 1947). After enquiry which disclosed that only 100 bighas were in possession of the landlords and the rest were in possession of the tenants, the Sub-divisional Officer referred to arbitration all the lands except the khatas mentioned above. There was a proceeding under Section 144, Criminal P. C. in respect of two khatas, namely, 101, and 166, and it was held in that proceeding that Ramdahin, opposite party 1, son of Gajadhar, was in possession. After that there does not appear to be any dispute-between the parties in respect of any land until November, 1951, which has given rise to the present proceeding. It is also admitted that on 12-5-1951, a proceeding under Section 133, Criminal P. C. in respect of other lands, between the parties had ended against the petitioners. There was a proceeding under Section 188 (sic) of the Code of Criminal Procedure also against the petitioners which had been started on 4-6-51, & which had ultimately been dropped on 22-8-1951. Thereafter, two sanehas had to be lodged against the petitioners at the Instance of the opposite party-one tin the 12th of November and the other on 16-11-1951. The police submitted a report on 18-11-1951, in which it is alleged that when the police officers went to the spot, they found the petitioners and their men heavily armed and they were trying to obstruct the peaceful cutting of the paddy crops by the opposite party and their men.
(3.) MR. Rajkishore Prasad, appearing on behalf of the opposite party has submitted that there was no dispute at any time about the lands in question and that his clients had all along been in peaceful possession of the same. It is said that in spite of the auction sales in execution of decrees for rent, the opposite party were allowed to remain in possession by the auction-purchasers and that their possession was never disturbed. He does not accept the allegation of MR. Singh to the effect that Mitrajit Singh had sold the khatas, which he had purchased, to Hartaans or his father Jugalkishore. He says that the sale-deed of 28-3-1940, had only conveyed the mokarrari rights of Mitrajit to Harbans or his father. MR. Singh did not accept this position and he referred me to a sale-deed of 28-3-1940, which he had in his possession, and it disclosed that the contention of MR. Rajkishore Prasad was right that these khatas have not been mentioned in this sale-deed. MR. Prasad has referred me to a list of documents which his clients had filed before the learned Sub-divisional Magistrate on 4-12-1951, just on the date when the show cause petition under Section 107, Criminal P. C., was heard, and from that list it appears that MR. Prasad's clients had filed the following documents before the Court; 1. Sada Settlement paper regarding khatas Nos. 100, 141, 142, 166, 2 and 101; 2. An order under Section 144, Criminal P. C., dated 4-12-1947; 3. Original sale certificate in the execution case showing sale of the khatas to Mitrajit Singh; 4. Certified copy of delivery of possession-It appears the copy had been taken soon after the delivery of possession;;

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