ORDER :

1. Being aggrieved by the order dated 6.12.2021 passed in Criminal Revision No.81/2021 by the learned Sessions Judge, Raigarh quashing the order passed by the Sub Divisional Magistrate under Sections 145 and 146 of the CrPC dated 28th October, 2021 in Misc. Criminal Case No.29/2021, the present petition has been preferred.

2. Facts of the case are that the petitioner and respondent No.1 are real brothers. Father of petitioner and respondent No.1 namely, late Damodar Patel was in possession of ancestral property bearing Khasra No.76, total area 8.759 hectares situated at village Jampali, PH No.2, Tehsil and District Raigarh. Father of the petitioner had executed a registered sale deed in favour of respondent No.1 for about 10 acres of land and also executed registered sale deed in favour of his grandson. So, the petitioner had filed a civil suit for declaration and permanent injunction and also to declare the aforesaid sale deed dated 23rd March, 2002 to be not binding upon the petitioner before the Civil Judge, Class-2, Raigarh. On 16th July, 2002, the suit has been partly allowed and the sale deed executed by late father of the petitioner namely, Damodar Patel was held to be not binding on the petitioner. Late Damodar Patel and respondent No.1 were also restrained from alienating the property of Schedule A. Except some of the property mentioned in Schedule A, B and C of the said suit was declared ancestral property. Against the said finding, the petitioner has preferred First Appeal before the 1st Additional District Judge, Raigarh bearing Civil Appeal No.46-A/2012 and the learned First Appellate Court vide judgment dated 16th April, 2014 affirmed the judgment and decree passed by the trial Court. Thereafter the petitioner has challenged the same before this Court by way of Second Appeal bearing SA No.253/2014, which is pending consideration before this Court.

3. During the pendency of the said case, father of the petitioner and respondent No.1 namely Damodar Patel had expired. As the property is in the nature of ancestral property, so the petitioner and respondent No.1 have equal right. Therefore, with the consent of the parties, the matter has been referred to the Lok Adalat which is scheduled to be held on 13th May, 2023 vide order dated 7.2.2023.

4. During the pendency of the aforesaid civil proceeding before the civil Court and the High Court, on 31st August, 2021, the petitioner had moved an application under Section 145 of the CrPC before the concerned SDM against respondent No.1 wherein after obtaining report from the concerned Police Station, the learned Magistrate has passed the preliminary order on 28th August, 2021. The said order was challenged by respondent No.1 before the Sessions Judge, Raigarh and by the impugned order dated 6th December, 2021, the Revisional Court quashed the order passed by the SDM. Hence this petition.

5. Learned counsel for the petitioner submits that as the petitioner has not filed any suit for declaration of title and possession and his suit was for declaration and permanent injunction, pendency of the said civil litigation would not affect parallel proceeding under Section 145 of the CrPC. As the entire property is ancestral property and some of the property has been sold by the father of petitioner in an unauthorized manner in favour of his brother and son of his brother, though as a family settlement, the petitioner and respondent No.1 are cultivating the land in peaceful manner.

6. Upon being asked by the Court, learned counsel for the petitioner submits that there are sisters also of the petitioners but in the said suit, they have not been impleaded as party. He further submits that during pendency of the case, father of the petitioner had expired, so daughters of late Damodar Patel have been brought on record being LRs of late Damodar Patel. Learned counsel would refer to paras-299 and 301 of the judgment rendered by the Hon’ble Supreme Court in the matter of M. Siddiq (Dead) th