Nagendra Prasad Singh.

The petitioners were the members of the second party in a proceeding under section 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code'). The dispute related to several plots of land in three villages, namely, Lalsahaiya, Fakirachak and Hisuachak, in the district of Bhagalpur, details where of have been given in the order under revision. Learned Magistrate by the impugned order has come to the conclusion that opposite party no. I Lakshman Goswami (hereinafter to be referred to as' the opposite party') was in possession of the lands in dispute.

2 According to the members of the second party-petitioner, the lands in dispute belonged to them and they being the tenants in respect of those lands are in possession there of. So far as the opposite party is concerned, he is not disputing that the petitioners were the tenants of the hinds in question. That is an admitted position in the case. According to the opposite party, he was in possession of those lands as Bataidar of the petitioners, and, as such entitled to retain possession of those lands.

3. Originally, the application was filed before this Court challenging the impugned order on merit. However, during the pendency of the revision application a supplementary affidavit has been filed on behalf of the petitioners stating that in view of different orders passed in accordance with the provisions of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as 'the Act'), the lands in question have to be declared to be in possession of the petitioners and the order passed by the learned Magistrate declaring the opposite party to be in possession of the disputed lands has to be set aside. This point had been urged even before the learned Magistrate on behalf of the petitioners that in view of the fact that the Consolidation Officers have carved out a separate chak in favour of the petitioners consisting of the plots which are the subject matter of dispute in the proceeding and the petitioners have been put in possession of the said chak; the proceeding has to be decided in favour of the petitioners. Learned Magistrate, however, repelled the said argument by observing as follows:

“Consolidation of Holdings are being done on the basis of raiyati interest and raiyati interest of the second party is not disputed.”

By the aforesaid observation, perhaps, the learned Magistrate meant that the, proceeding under section 145 of the Code having been initiated as early as on 26.10.1967 has to be decided in respect of the position existed then and any subsequent order passed by the Consolidation Officer in purported exercise of the powers conferred on him by the Act, shall have no bearing on the present proceeding.

4. From time to time the above question has arisen in context with different enactments as to what will happen when during the pendency of a proceeding under section 145 of the Code, a proceeding is initiated and decided under those enactments relating to those very lands. One such question had arisen in context with a proceeding under section 48-E of the Bihar Tenancy Act, in the case of Jai Prakash Rai and another V. Hans Lal and others (1977 Bihar Bar Council journal 626). During the pendency of a proceeding under section 145 of the Code a Bataidari proceeding was initiated under section 48-E of the Bihar Tenancy Act. This Court faced with the situation as to what should be the proper procedure in such cases, after construing the different sub sections of section 48-E of the aforesaid Act, came to the conclusion that once a proceeding under section 48-E of the Bihar Tenancy Act, is initiated the question of threatened dispossession, possession and restoration of should be decided in that proceeding and the proceeding under section 145 of the Code should be dropped. It was pointed out that a special forum has been provided under section 48-E of the Bihar Tenancy Act, for deciding