JUDGMENT
I.P. Singh, J.
1. This application has been filed for quashing the order dated 25.11.2000 passed by 7th Additional District and Sessions Judge, Bhagalpur, in Cr. Rev. No. 630 of 1997 by which he has dismissed the revision petition and also the order dated 5.9.1997 passed by Sub-Divisional Officer, Sadar Bhagalpur, in Misc. Case No. 540/97 by which the learned Sub-Divisional Officer has converted the proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) into 145 of the Code.
2. The dispute relates to Khata No. 56 Survey Plot No. 147, area 3 acres 64 decimals situated in village Ahmadpur, P.S. Akbarnagar, Anchal Sultanganj, District Bhagalpur.
3. Learned counsel for the petitioners has submitted that the disputed Plot No. 147 of Khata No. 56 of mauza Ahmadpur P.S. Akbarnagar, Achal Sultanganj was wrongly surveyed in the name of Bhuvaneshwar Harijan, brother of opposite Party Nos. 2 and 3. Title of the said land has already been decided in the Title Suit No. 185/65 in favour of the petitioners declaring the survey entry illegal by decree dated 19.9.1968 and the petitioners were in possession of the land. The Opposite Party Nos. 2 and 3 procured fake rent receipts in favour of their claim. The police also gave a wrong report that the land was ancestral land of opposite party and they had been in cultivating possession of the land.it has been also submitted that in view of decision of the civil Court opposite party has no claim over the land. Another Title Suit No. 25/88 filed by the petitioners is also pending in which it has been claimed that the land in dispute is not a Sairat land, as claimed by State of Bihar.As a matter of fact, the alleged land was settled as Sairat in the name of Shivanandan Yadav by the Government and again it was settled in favour of Hari Gorhi but they could not take the possession of the land because of the interference of the petitioners: The opposite party had no concern when such settlement was done by the Govt. It has been further submitted that in view of the order of settlement made by the Circle Officer, Sultanganj, who has also been made party in the proceeding because in absence thereof the proceeding was not maintainable. It has been thus submitted that since Title Suit No. 25/88 is pending in the Court below appertaining to the disputed land, criminal proceeding under Section 145 of the Code is bad and is abuse of the process of the Court. In support of this contention learned counsel has relied on a decision in the case of Amresh Tiwari v. Lalta Prasad Dubey and Ors., 2001 (I) PLJR (SC) 135, in which it was held that when a title suit is pending appertaining to the same land and possession, no parallel criminal proceeding shall be allowed to continue.
4. A counter affidavit has also been filed on behalf of the Opposite Party Nos. 2 and 3 in which it has been stated that the opposite party got the land by settlement from the ex-landlord on which they had peaceful possession and they have been growing their crops. They have also been paying rent to the ex-landlord and also to the State of Bihar. They also have their tube well and they have purchased thrasher and other equipments for agricultural purpose by mortgaging this land. Thus judgment and decree obtained by the petitioners in the year 1968 was never executed and it lost its force in view of settled law that any judgment in suit has got no force after decades if it has been executed within time limit. The brother of the petitioners tried to grab the land by adopting wrong method. It has been further stated that the disputed land is not a Sairat land and Title Suit No. 25/88 is not a bonafide title suit. This title suit has been filed against settlement of Sairat in respect of the land which the opposite party are cultivating. It has also been averred that if judgment and decree was in favour of petitioner why this Title Suit No. 25/88 has been filed again. That apart, they have not been made party in the aforesaid suit. As such, the contention of the learned counsel for the petitioners that since the civil suit is pending, criminal case cannot proceed, has no force. Learned counsel for the opposite party has relied on a decision in the case of Amresh Tiwari v. Lalta Prasad Dubey and Anr., 2001 (1) PCCR 307. In paragraph 14 of this decision the Apex Court has held that it is not a law that where civil suit is filed the proceeding under Section 145 of the Code would not lie for the same property. In cases where the civil suit is for the possession of title with respect to same property, the proceeding under Section145 of the Code should not be allowed to continue, because the civil Court is competent to decide title and possession between the parties. Title Suit No. 2588 has been filed by the petitioners not for the declaration of tile and possession but it for declaring that the State has no right to settle the suit land as Sairat. In view of above decision there was no bar for initiation of proceeding under Section 145 of the Code. It has also been stated that the decision of the learned Magistrate should not be interfered with until and unless there is patent illegality and irregularity or perverseness against the tenor of evidence because the conclusive remedy against such order only lies before the civil Court.
5. In view of above submission I am of the view that the Court below on appreciation of evidence and material on record has come to the conclusion that the opposite party were in possession over the land and thus rightly directed the petitioners not to interfere and disturb the peaceful possession of the opposite party over the disputed land. I find no illegality in the order impugned of the learned Magistrate and also in the order of the revisional Court. Accordingly, this application is dismissed.