MOSTT. SAJDA KHATOON Vs. THE STATE OF BIHAR AND 23 OTHERS

JUDGEMENT

(1.) The sole petitioner has challenged the validity of the order dated 17.5.1984 by which the proceeding under Sec. 145 Cr.P.C. has been dropped on account of death of Fahimuddin, first party. It appears that Fahimuddin, the first party, had filed an application for action under Sec. 144 Cr.P.C. against the petitioner and other members of the opposite party, on the basis of which a proceeding under Sec. 144 Cr.P.C. was drawn up on 24.10.1968. The said petition of Fahimuddin was sent to the police for inquiry and report. There after the police submitted its report on the basis of which proceeding under Sec. 144 Cr.P.C. was drawn up. It appears that on 10.12.1968 the said proceeding was converted into one under Sec. 145 Cr.P.C. The parties thereafter filed their written statements in the Court below. By order dated 31.3.84/8.4.81 the learned Subdivisional Magistrate disposed of the case and declared the possession of the State of Bihar over the land in dispute showing the land in question to be Gairmajarua Aam. Against the said order, a revision application was preferred before the District and Sessions Judge, Nalanda Biharsharif and some of the parties preferred revision applications before this Hon'ble Court. It appears that three revision applications were heard, out of which one Criminal Revision application no. 491/83 was allowed and other two Revision Application nos. 695/81 and 747/81 were remanded to the Court below. Thereafter it appears that the Court below issued notices to the concerned parties. On 17.5.1984 on behalf of the State it was pointed out that the first party Fahimuddin, had died four months back and that no substitution petition had been filed on behalf of his heirs and, as such, a prayer was made for dropping of the proceeding. Learned counsel for the petitioner was also heard and there after the proceeding was dropped.

(2.) From the above said order dated 17.5.84, it appears that no pairvl was done by other members of the second party in that proceeding. On behalf of the petitioner it has been contended that the order under challenge is arbitrary and against the order of this Court passed in Criminal Revision nos. 695/81 and 747/81. The learned Magistrate should not have dropped the proceeding rather he should have decided the possession of the parties in respect of those persons, who were already on the record of the case. Lastly it has been contended that the Court below has not acted according to the directions of this Hon'ble Court. According to the learned counsel for the petitioner, Fahimuddin, the first party, was the Thikedar of the petitioner and, as such his heirs have no interest in the property and their substitution was immaterial.

(3.) This revision application has been resisted by opposite party no. 3 and by Syed Abbas alias Madrasi Baba, who has filed counter -affidavit in this case, as opposite party no. 24. According to both of them the order under challenge is just and proper in the facts and circumstances of the case. From the counter -affidavit filed on behalf of opposite party no. 24 it appears that Title Suit no. 31/84 has been filed in the Court of the Subordinate Judge, Biharsharif, with respect to the disputed lands and, as such, it has been contended that there is no necessity for the proceeding under Sec. 145 Cr.P.C. It has been further asserted that in the said Title Suit no. 31/84 the State of Bihar and others have filed written statement and the petitioner has also filed an application for impleading her as intervenor and she has also claimed right over the disputed property.