JUDGMENT
S. Shamsul Hasan, J.
1. Second party petitioners have come to this Court against a final order in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the ‘Act’) relating to a dispute over 10 Bighas 5 kathas and 18 dhurs of land situated in village Dharhara, Police Station Mairwa in the district of Siwan, over which the members of the first party have been declared to be in possession as bataidars. The 2nd party denied the claim of the first party and claimed their complete possession over the dispute land in their own right. In my view, the impugned order cannot be sustained in law because of two reasons that 1 pose to deal hereafter.
2. It is well settled that the claims of the bataidars have to be adjudicated in accordance with the procedures prescribed under Section 48-E onwards of the Bihar Tenancy Act (B. T. Act) and primarily the right accrues to a bataidar when he is thereatened with eviction at the hands of the superior raiyats because a bataidar cannot be evicted except on the grounds which the law provides for such eviction. Once a proceeding is initiated under Section 48-E of B. T. Act, civil suit and proceedings under
section 145 of the Code are barred. If there is no proceeding under Section 48-E of the B. T. Act, a suit does become maintainable or a proceeding under Section 145 of the Code can be initiated to prevent breach of the peace which on the initiation of a proceeding under Section 48-E of the B.T. Act will stand effaced and cannot be continued.
3. It is common ground that after the proceeding under Section 145 of the Code had been initiated, the proceeding under Section 48-E of the B. T. Act was also sought to be initiated by the first party which at the initial stage was refused only to be initiated on the orders of the superior authority and that proceeding is pending disposal. In this situation, the only remedy left to the learned Magistrate was to resort to other sections of the Code under which steps could be taken to prevent breach of the peace : like Sections 107 and 144 of the Code and not Section 145.
4. The second aspect of the matter is that the possession of a bataidar to whatever extent and to whatever strength and in exercise of whatever legal right, is always that of the superior raiyat. Statutory relationship is established and certain terms and conditions provided by law guides this relationship Beyond that, a superior raiyat has complete title over the land and possession through his bataidar. In view of it these facts admitted in this applications 1 cannot visulise situation in which a tenant can claim to be in possession in detriment to the interest of the superior raiyat. On this ground also, the proceeding under Section 145 of the Code is entirely misconceived and it should not have been initiated in the first instance,
5. In the result, the application is allowed and the impugned order is set aside. My decision in this case should not be taken to prejudice one way or the other the case of either party in the proceeding under Section 48-E of the B, T. Act and whatever I have said for the purpose of the maintainability and the merit of the proceeding under Section 145 of the Code.