Delhi District Court
Mr. Gulshan Kumar vs . State & Ors. on 28 August, 2014
Mr. Gulshan Kumar vs. State & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
CR No. 50/11
ID No. 02401R0385102011
Gulshan Kumar
S/o Sh. Ram Chander
R/o 11719 Gali No. 3,
Sat Nagar, Tank Road,
New Delhi.
.............Petitioner
versus
1. State
..........Respondent No.1
2. Mr. Chain Sukh
S/o Late Sh. Goma Ram Sablania
R/o 11647/1 Sat Nagar,
Tenk Road, Karol Bagh,
New Delhi.
.........Respondent No.2
Date of Institution : 25.08.2011
Date of order reserved on : 20.08.2014
Date of order : 28.08.2014
Present: Sh. Devender Nath, proxy counsel for Sh. Deepak Diwan,
Advocate, counsel for revisionist
Sh. R. K. Tanwar, Advocate, counsel for State/respondent
no.1
Sh. R.K.Saini, Advocate, counsel for respondent no.2
CR No. 50/11 Page 1 of 7
Mr. Gulshan Kumar vs. State & ors.
O R D E R:
1. This criminal revision has been filed against the impugned order dated August 4, 2011 passed by the Court of learned SDM Karol Bagh, Delhi under Section 145 Code of Criminal Procedure (in short Cr.P.C).
2. Necessary facts in brief leading to filing the present criminal revision are that a Kalendra under Section 145 Cr.P.C was filed vide DD No.79B dated March 17, 2011 with the allegations that two locks were found on the door towards stairs of first floor in property No. 3A/112, WEA, Karol Bagh, New Delhi. Both the parties i.e. revisionist and respondent no. 2 made their claim on the said premises. As there was apprehension of breach of peace, a Kalendra was filed before the Court of SDM, Karol Bagh, Delhi. On receipt of the Kalendra, notice was issued to both the parties and tenant Dharam Mohan Dua who allegedly vacated the premises being the tenant and handed over the peaceful and vacant possession of respondent no.2. After hearing both the parties and evidence led by them, Court of SDM passed the impugned order declaring that respondent no.2 was in physical possession of the said property and was entitled to restrained the possession of the same until outest by due process of law.
3. Aggrieved by the said order, revisionist preferred the present criminal revision.
4. Learned counsel appearing for the respondent no.2 submitted that there is no illegality or impropriety in the impugned order, thus no influence is required from this revisional Court. It was submitted that during CR No. 50/11 Page 2 of 7 Mr. Gulshan Kumar vs. State & ors.
the proceeding respondent no.2 had claimed that the said premises belonged to him and he had given the same to Dharam Mohan Dua on rent vide Rent Agreement dated July 1, 1986 and the tenant had surrendered the premises to respondent no. 2 on March 16, 2011 by way of Surender Deed. In support of his claim, respondent no. 2 had examined Dharam Mohan Dua, who supported the claim of respondent no. 2. It was submitted that during proceeding, revisionist failed to produce any document on record and also failed to produce any evidence to show that the said premises was in his possession at any point of time.
5. Revisionist by way of present criminal revision assailed the impugned order on the grounds inter-alia that a Rent Deed dated July 1, 1986 and Surrender Deed dated March 16, 2011 are forged and fabricated document and submitted that Dharam Mohan Dua was not a tenant in the said property. It was further contended that respondent no. 2 failed to produce any document regarding his ownership over the property in question before the learned SDM and petitioner/revisionist had filed an affidavit raising objection that he was a tenant of DDA and paying damages to DDA since 1986. It was further contended that there is no apprehension of breach thus, impugned order is not sustainable.
6. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
7. Before dealing with the contention raised by the parties, I deem it appropriate to refer to the relevant portion of Section 145 Cr.P.C.
"145. Procedure where dispute concerning CR No. 50/11 Page 3 of 7 Mr. Gulshan Kumar vs. State & ors.
land or water is likely to cause breach of peace:
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
..........
..........
(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be CR No. 50/11 Page 4 of 7 Mr. Gulshan Kumar vs. State & ors.
treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) the order made under this sub-section shall be served and published in the manner laid down in sub- section (3).
8 Now coming to the contentions raised by the parties.
9. As per the revisionist, respondent no. 2 is not the owner of the land in question. It is undisputed fact that the Court of SDM has no jurisdiction under Section 145 Cr.P.C. to decide the title of ownership and this fact is reiterated by learned SDM in the impugned order by holding that the decision regarding the ownership/title of property is beyond the jurisdiction of this Court. Only the civil Court has jurisdiction to decide the dispute to the ownership/title of the property. Thus, I do not find any illegality or impropriety when learned SDM held that scope of ownership/title of property was beyond his jurisdiction.
10. Now coming to the next contention raised by revisionist that he was a tenant of DDA since 1996 and he was paying damages to the DDA. But during trial revisionist failed to adduce any evidence in this regard. No document was produced during the proceeding. If, he was in the possession of the premises in question, he should have produced all the relevant documents and evidence before the learned SDM but he failed to do so. No doubt, along with the revision, revisionist has filed two receipts CR No. 50/11 Page 5 of 7 Mr. Gulshan Kumar vs. State & ors.
showing that he had deposited some damages qua Khasra No. 2592, Basti Roghan State, Delhi. Assuming for the sake of arguments that the revisionist has deposited the said amount before DDA but same does not show that the revisionist was in the physical possession of the premise in question. Needless to say that the damages, if any, had been deposited qua Khasra No. 2592 and not for a particular premises. It is undisputed fact that during proceeding, respondent no. 2 had not only produced Rent agreement dated July 1, 1986 but also produced the surrender deed dated March 16, 2011. Beside that he also examined tenant Dharam Mohan Dua who categorically deposed that he was in the possession of the premises in question being the tenant of respondent no.2. Even the investigating officer ASI Tersem Kumar also deposed before the learned SDM that revisionist had failed to produce any document relating to his claim whereas respondent no. 2 had stated that Dharam Mohan Dua was his tenant and the premises was in his possession who had vacated the same on March 16, 2011. On the basis of evidence led by the parties, learned SDM had decided that respondent no. 2 was in the possession, thus entitled to retain the possession until he is dispossessed by actual owner through due process of law.
11. Respondent has claimed that Rent Agreement dated July 1, 1986 and surrender Deed March 16, 2011 are forged and fabricated but during proceeding, revisionist failed to produce any document in this regard. It is also pertinent to state that Dharam Mohan Dua also produced the bill of MTNL to show that the premise in question was in his possession.
12. From the above discussion, it becomes clear that during the proceeding respondent no.2 has produced sufficient evidence to prove his claim over the property in question whereas revisionist did not adduce any CR No. 50/11 Page 6 of 7 Mr. Gulshan Kumar vs. State & ors.
evidence to prove his claim. Thus, I do not find any infirmity or illegality in the impugned order.
13. In the light of aforesaid discussion, I am of the opinion that there is no merit in the present criminal revision, hence I hereby dismiss the same.
14. Copy of order be sent to the learned Trial Court immediately. TCR be sent back.
15. Criminal revision file be consigned to record room.
Announced in the open Court On this 28th day of August, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central District/THC/DELHI/sv CR No. 50/11 Page 7 of 7