Chandra Shekhar Jha, J. – Heard learned counsel for the petitioners and learned counsel for the respondents.

2. The present quashing petition has been preferred to quash the order dated 09.05.2016 as passed in Criminal Revision No. 407 of 2002 by learned Additional Sessions Judge, Vth, Danapur, where, revision petition filed by opposite parties against order dated 21.05.2002 as passed by learned S.D.M. Paliganj in Case No. 505 (M) of 1999, in a proceeding initiated under Section 145 of the Code of Criminal Procedure (in short Code) declaring possession of the petitioners upon the land in dispute and debarring the opposite parties from going over the said land has been allowed and order dated 21.05.2002 passed by learned S.D.M. Paliganj was set aside.

3. The brief story of prosecution is that one Ayodhya Upadhyay was the ancestor of the petitioners who had three sons namely Nandkeshwar Upadhyay, Brahmdeo Upadhyay and Narsingh Upadhyay, out of which Brahmdeo Upadhyay and Narsingh Upadhyay died issue less while Nandkeshwar Upadhyay had six sons namely Suryanath Upadhyay, Ram Ekbal Upadhyay, Ram Kripal Upadhyay, Parasnath Upadhyay, Ram Naresh Upadhyay and Dudhnath Upadhyay, out of which Suryanath Upadhyay, Ram Kripal Upadhyay, Ram Naresh Upadhyay and Dudhnath Upadhyay died issue less, while Ram Ekbal Upadhyay had three sons namely Jagdish Upadhyay, Deobansh Upadhyay, Sheobansh Upadhyay and Parasnath Upadhyay had two sons namely Ram Upadhyay and Sham Upadhyay. The petitioner are members of this genealogical table and the land in question are their khatiyani and ancestral land, while the opposite parties are neither members of this genealogical table nor in any manner concerned with disputed land in question. But the opposite parties want to grab away the ancestral property of the petitioners. The genealogical table issued by the Circle Officer, Dulhin Bazar, Patna is the evidence of that.

4. Learned senior counsel Mr. Baxi S.R.P. Sinha, while appearing on behalf of petitioners submitted that impugned order was passed in such a manner as it was passed by the Appellate Court, without deciding the possession of either of the parties, allowing the ‘threat of breach of peace’ to continue. It is pointed out that the Revisional Court while setting aside the order must have decided the possession of either of the parties. Learned senior counsel further submitted that if Revisional Court was satisfied with the fact that opposite parties/revisionists are from the common ancestor, qua, petitioners and also Title Suit No. 44 of 1922, which was passed on the basis of joint compromise vide order dated 17.02.1923 was not considered during the proceeding, despite of the fact that it was pleaded by the opposite parties, matter must be remanded back for consideration of those documents to the Court of learned SDM to pass fresh order rather than to keep issues hanging open between the parties, qua, their possession, which is the ultimate object of a proceeding under Section 145 of the Cr.P.C.

5. Learned senior counsel Mr. K.N. Chaubey, while appearing for opposite parties submitted that once substantial finding regarding land in dispute has already settled long back through Title Suit No. 44 of 1922, initiation of present proceeding under Section 145 of the Code regarding said piece of land is not permissible as per settled law. It is further submitted that initiation of present proceedings under Section 145 of the Code is purely on imaginary grounds to disturb the possession of opposite parties, which has already been settled through Title Suit No. 44 of 1922. It is submitted Title Suit No. 44 of 1922 clearly shows that both parties are common ancestor of one Haribansh Upadhyay.

6. While concluding the argument learned senior counsel submitted that if matter is remanded to learned Trial Court, facts to ponder upon are: –

6.1. Examination regarding common ancestor of Haribansh Upadhyay, which is specifically denied on oath by the petitioners and also find