Om Prakash Pradhan, J. - (1.) By means of this writ petition, the petitioners pray for quashing the order dated 26.2.1991 passed by the Sub-Divisional Magistrate, Khaga and order dated 5.7.1991 passed by the IVth Addl. Sessions Judge, Fatehpur and for a direction that the dispute between the parties may be decided in Civil suit No. 70 of 1991 filed by the petitioners in the Court of Munsif Khaga, district Fatehpur. The dispute relates to the possession over the 28 plots measuring 32 bigha 3 biswas situate in village Maupara, Pragana Hathgaon, District Fatehpur. It appears that proceedings under Section 145 Cr. P.C., were initiated by S.D. Khaqa on the application filed by the respondent No. 1 Smt. Andhari. Preliminary order under Section 145 (1) Cr.P.C. in respect of these afore- said plots was drawn by the S.D.M. Khaga on 15.5.1987 and both parties were required to file their written-statements of claim to possession. The petitioners claimed their possession over the said plots on the basis of a Will executed by Sheo Mangal and contended that their names have been mutated over the said plots in the year 1979. The petitioners also denied the possession of Smt. Andhari and further contended that there was no apprehension of breach of peace in respect of the afore- said plots. Smt. Andhari, on the other hand, claimed to be in possession over the said plots in her capacity as the legal heir of Sheo Mangal. According to Smt. Andhari, she is the sister of late Sheo Mangal. She further pleaded that the Will relied upon by the petitioners is forged and fictitious. S.D.M. Khaga passed an order on 12.9.89 presumably under Section 145 (4) Cr. P.C. Feeling aggrieved by this order, the petitioners preferred a revision which was allowed on 5.9.1990 by the IInd Addl. Sessions Judge, Fatehpur, who remanded the case to the S.D.M. for a fresh decision. After remand of the case, Smt. Andhari filed an application on 4.12.1990 together with an affidavit for attachment of the aforesaid plots arid its standing crops. Another application together with an affidavit containing the same prayer was filed by Smt. Andhari on 21.2.1991 before the S.D.M., and it further appears that the S.D.M. passed an order for attachment under Section 146 (1) Cr.P.C. on 26.2.1991. According to the petitioners, they had filed objections before the S.D.M. on 26.2.1991 saying that they had filed a civil suit in the Court of Munsif Khaga bearing suit No. 70 of 1991 and Munsif Khaga had passed a temporary injunction against Smt. Andhari and others on 23.2.1991 restraining them from interfering in the petitioner's possession over the aforesaid plots. According to the petitioners, once a temporary injunction had been passed on 23.2.1991 by the learned Munsif Khaga in their favour, it was not open to the S.D.M. Khaga to pass an order for attachment on the said plots in exercise of his power under Section 146 (1) Cr.P.C., since no parallel proceeding could go on simultaneously. The petitioners also preferred a revision before the Sessions Judge, Fatehpur against the order dated 26.2.1991 passed by the S.D.M. Khaga but this revision also came to be dismissed on 5.7.1991. It is under these circumstances that this writ petition was filed by the petitioners in this Court on 9.7.1991 for the aforesaid reliefs.
(2.) Affidavits have been exchanged between the parties and this writ petition has been heard on merits since learned counsel of both the parties agreed for this course.
(3.) Learned counsel of the petitioners contended that it was not open to S.D.M. Khaga to pass an order of attachment under Section 146 (1) Cr. P.C. on 26.2.1991 because the petitioners had already filed civil suit No. 70 Of 1991 in respect of these very plots in the court of Munsif Khaga and a temporary injunction had been granted in their favour on 23.2.1991 in the said suit by the learned Munsif Khaga. The copy of the temporary injunction granted on 23.2.1991 is Annexure- 2 of the writ petition. It has also been contended on behalf of the petitioners that the villages in which the aforesaid plots are situate, hating come under consolidation operations, proceedings under Section 145 Cr.P.C. could not continue. In substance, it has been urged on behalf of the petitioners that proceedings under Section 145 Cr.P.C. could not be continued in the wake of the civil suit No. 70 of 1991 filed by the petitioners in the Court of Munsif Khaga in respect of these plots and also because of the consolidation operations.;