JUDGMENT

Loknath Prasad, J. - This is an application under Section 397 read with Section 401 of the Code of Criminal Procedure for setting aside the order passed by Sub-divisional Magistrate, Sitamarhi (Sadar) in Case No. 105/93 which was filed under Section 145, Cr. P.C.

2. The facts, in short, giving rise to this application is that the petitioner claimed that he is recorded tenant of plot No. 3910 and 3913 under khata No. 471 and plot Nos. 2112 and 2213 of khata No. 159 along with other co-sharers in the revisional survey record of rights and the opposite party has no connection with these lands. However the opposite party claiming himself to be an heir from the common ancestor, namely, Gopal Singh filed an objection under Section 10 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as 'the Bihar Consolidation Act') and claimed 2/3rd share over the land of khata Nos. 159, 160 and 471 of village Ratanpur but the Consolidation Officer after hearing both the parties rejected the claim of the opposite party. Aggrieved by that the opposite party filed an appeal before the Deputy Director, Chakbandi Sitamarhi under Section 10 of the said Act and the Deputy Director after hearing the parties allowed the appeal vide order dated 28.12.1992 and an order was passed for adding the name of the opposite party along with other cosharers in respect of the lands of these khatas. Against that order the petitioner also filed a revision under Section 35 of the Act which is pending before the Joint Director, Consolidation, Muzaffarpur.

3. It is also alleged that being emboldened by the order dated 28.12.1992 passed by the Director Consolidation the opposite party began to claim the disputed lands that is portion of the land of khata Nos. 159 of471 of village Ratanpur and on the recommendation of the local pol ice a proceeding under Section 144, Cr. P.C. was intiated by the Sub-divisional Magistrate (Sadar), Sitamarhi which was convened into a proceeding under Section 145, Cr. P.C. In that very proceeding the opposite party filed a petition on 10.6.1993 that the Consolidation authority passed necessary order in favour of the opposite party declaring him to be the raiyat of the disputed land whereas entries were made in the register in the consolidation proceeding and so this proceeding under Section 145, Cr. P.C. is liable to be dropped. Vide impugned order dated 19.7.1993 the S.D.M. on the basis of the authorities reported in 1984 B.B.C.J. 316 and some other decisions of this Court dropped proceeding under Section 145, Cr. P.C.

4. Being aggrieved and dissatisfied with the order this revision has been preferred mainly on the ground that the learned Executive Magistrate has no right to drop the proceeding and admittedly there was apprehension of breach of peace and at least the order passed by the consolidation authority may be treated as an evidence in favour of the opposite party and in any view of the matter the Executive Magistrate should have decided the proceeding on merit after taking evidence of the parties concerned and on this score only the impugned order is liable to be set aside.

5. In pursuance of the notice issued by this Court the opposite party entered appearance and filed a counter affidavit and it was submitted that admittedly there was under Section 145, Cr. P.C. proceeding in respect of some lands of khatha Nos. 471 and 159 and in fact one Gopal Singh was the common ancestor and he died leaving behind three sons, namely, Inderjit Singh, Brij Mohan Singh and Sukhdayal Singh. Sukhdayal Singh died in the year 1938 but he adopted Jitu Singh, the father of the opposite party as his son by a registered deed of adoption and thus Jitu Singh who was the son of Brij Mohan Singh became the owner in respect of 2/3rd share in respect of these lands whereas the petitioner is the heir from the branch of Inderjit Singh one of the sons of Gopal Singh and the petitioner and his other co-sharers