A proceeding under section 145 of the CrPC cannot be initiated during the pendency or immediately after disposal of a civil suit with regard to the same land, where the Consolidation Officer and the Deputy Director of Consolidation have already given findings in favor of one party regarding title and possession over the disputed land.

Krishna Ballabh Sinha, J.

1. This application under sec. 482 of the Code of Criminal Procedure thereinafter referred to as "the Code) is directed against the order dated 22.3.1985 by which the Sub-divisional Magistrate, Jehanabad, initiated a proceeding under sec. 145 of the Code with regard to some plots of land situated in village Deogghra within Kako Police Station in the district of Gaya.

2. A proceeding under sec. 144 of the. Code was started with regard to the said plots on the basis of a report submitted by the police on 4.1.1985. The petitioners as well as the members of the opposite party filed their show cause and produced some documents in the Court below. After hearing the parties, the Sub-divisional Magistrate converted the proceeding into one under sec. 145 of Code by impugned order.

3. The petitioners figured as 1st Party in the Court below and the members of the opposite party as the 2nd Party. The case of the petitioners, in brief, is that the disputed plots were acquired by Rash Bihari Singh, Keshwar Singh and Bambhola Singh prior to the Cadestral survey. The share of Rash Bihari Singh in the disputed land was to the extent of 12.00 amnas and remaining of-annas belonged Jointly to Keshwar Singh and Bambhola Singh and, accordingly, their names were recorded in the record of rights in the Codestral survey. After some time a partition took place and the parties came in possession of the land allotted to them according to their respective share.

4. Rash Bihari Singh executed a registered deed of gift on 31.3.1941 in favour of his daughter-in-law, Daulat Kuer, who came in possession of the property and her name was mutated in the record of the landlord. Daulat Kuer died leaving behind her only heir, Radhika Kuer, who is the wife of petitioner No.

5. Her sons are petitioners Nos. 1 to 4 in this petition. The petitioner claim to be in cultivating possession of the land from the date of execution of the said deed of Sift.

6. The case of the opposite party, on the other hand, is that Rash Bihari Singh never acquitted the land as his personal property. He was Karta of the family at the time, of cadestral survey and taking advantage of his position, he managed to get the land recorded in the record of rights as well as in the revenue records incorrectly. It is also disputed that the land in question was gifted by Rash Bihari Singh to Daulat Kuer. According to their case, the disputed land has always remained the property of the joint family, which was acquired by Ganpat Singh, the common ancestor of the parties.

7. It is also asserted on behalf of the petitioners that Partition Suit No. 76 of 1951 was instituted by Alakh Singh, father of opposite party Nos. 2 and 3, against Daulat Kuer in the Court of Sub-Judge, Gaya, which was decreed in part and it was held that the gift executed by Rash Bihari Singh in favour of Daulat Kuer was genuine as the former had purchased the property out of his own personal income. An appeal was filed by the plaintiff, which was also dismissed. It was held by the appellate Court that 3/4th of the disputed land was acquired by Rash Bihari Singh separately and the joint family had no concern with it at any time. The appellate Court further held that Rash Bihari Singh was perfectly justified and entitled to execute the two deeds of gift.

8. The opposite party has filed a photo stat copy (Annexure A) of the order passed by the Subordinate Judge, Jehanabad, in the said partition suit, from which it appears that the suit abated under the provisions of sec. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 thereinafter referred to as the Consolidation Act). It is urged on behalf of the opposite party that in view of the said orders the partition suit did not reach the stage of finality. On perusal of the said order (Annexure A) it is manifest that the proceeding for preparation of final decree only was held to have abated. It has been made clear that as n