Delhi District Court
Sessions Judge03 vs State Of Delhi on 17 August, 2009
1 Crl. Rev.No. 33/08
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE03,NORTH, DELHI.
Crl. Rev. No. 33/08
DD No.14 dt. 12.6.04
U/s 145 Cr. P.C.
P.S.Sarai Rohilla
Court concerned/successor court
Viveka Nand Sharma,
Sub Divisional Magistrate,
Sadar Bazar, Delhi.
Padam Singh
S/o Sh. Karan Singh
General Attorney of
Mahant Anil Kumar
S/o Mahant Gyan Dass
of 19/310, Sant Swami Bagh,
Old Rohtak Road, Daya Basti,
Delhi.
...Petitioner
versus
1. State of Delhi
Through Sub Divisional Magistrate
Sadar Bazar, Delhi (Room No. 27 & 28)
2 Crl. Rev.No. 33/08
Old Civil Supply Building, Tis Hazari,
Delhi.
2. Sh. Rajesh Kumar, Executive Magistrate,
Sadar, Delhi110054.
3. Sh. Dharambeer Sharma
R/o 19/310, Sant Swami Bagh,
Daya Basti, Old Rohtak Road,
Delhi.
.... Respondents
17.8.2009
O R D E R
1. This revision has been filed by the petitioner against the order dated 21.4.2008 passed by SDM Sadar Bazar in DD No. 14 dated 12.6.2004 Police Station Sarai Rohilla wherein the petitioner has been directed to hand over the possession of Chabutra measuring 20' X40' at 19/310, Sant Swami Bagh, Old Rohtak Road, Daya Basti, Delhi and was directed to hand over the possession to respondent no.3. 3 Crl. Rev.No. 33/08
2. As per the petitioner, the brief facts giving rise to the present revision are that one Anil Kumar son of Mahant Gyan Dass is the lawful owner of property bearing No. 19/310 comprised in khasra No. 546/309, 310, 311, 354 and 563, 547, 309, 310 and 334 having total area measuring 8 Bighas and 2 Biswas situated in the revenue Estate of village Chaukari Mubarkabad, Delhi Sant Swami Bagh Daya Basti, Old Road, Delhi known as Radha Swami Satsang Dera Baba Garib Dass and the petitioner is the constituted General Attorney of Mahant Anil Kumar. He has been looking after the affairs of the said property as well as realising rent etc on behalf of Mahant Anil Kumar. There is a Chabutra measuring 20' X 40' at 19/310, Sant Swami Bagh, Old Rohtak Road, Daya Basti, Delhi which has been continuously used for the religious purposes. Respondent no.3 illegally and criminally trespassed into the said Chabutra. Petitioner lodged a 4 Crl. Rev.No. 33/08 complaint with police station Sarai Rohilla,Delhi and the complaint was registered vide DD No. 14 dated 12.6.2004 and proceedings u/s 145 Cr. P.C. were initiated. IO recorded the statement of the parties and filed a kalandra before the court of SDM, Sadar Bazar. Notice was issued to the parties and petitioner filed his reply and stated that matter is pending adjudication before the Hon'ble Court regarding the alleged encroachment of Chabutra and the court of Senior Civil Judge, has already passed the status quo order regarding the Chabutra in case titled as Babu Ram vs. Anil Kumar. According to the petitioner, the respondent no.3 alongwith one Suresh Kumar have conspired with each other with malafide intention to cheat, fraud and misappropriate the property of Mahant Anil Kumar. According to the petitioner he has filed a suit titled as Anil Kumar vs Babu Ram for permanent injunction which was decreed on 5.9.90 in favour 5 Crl. Rev.No. 33/08 of the Anil Kumar where the said Babu Ram was restrained from dispossessing the plaintiff from the suit premises forcibly and without due process of law. The said Babu Ram preferred an appeal against the said judgement and in that appeal the parties were directed to maintain the status quo. In spite of aforesaid order one Suresh Kumar forged the receipt book and issued various receipts in respect of Chabutra of rent of Rs.1000/ per month without any right or authority.
3. The respondent no.3 also filed his reply to the show cause notice issued by SDM and filed various documents alleging that he is in possession of the said Chabutra on monthly rent which started from Rs.100/, then Rs. 200/, then Rs. 250/, then 350/ and presently Rs. 500/ for the last 10 years. He has also raised number of pleas in support of his contention and stated that he is a tenant and that one Mahant Anil Kumar through the party no.2 has been disputing 6 Crl. Rev.No. 33/08 the ownership rights of Mahant Babu Ram.
4. On hearing the parties, SDM, Sadar Bazar appointed a local commissioner with the direction to visit and verify at spot the actual prevailing position and in compliance of this order, respondent no.2 visited the spot and carried out inspection of the said Chabutra and recorded the statement of various witnesses in the absence of the appellant.
5. The appeal filed by the Babu Ram was also dismissed by the Senior Civil Judge, Delhi and no appeal against that order has been preferred by the respondent no.3 and that judgement has become final. According to the petitioner in the order dated 21.4.2008, the respondent no.1 has not considered the judgement of the Civil Court neither the findings given on various issues. He has not considered that the said Babu Ram has no right or interest in the suit property, that his son Suresh Kumar has forged and 7 Crl. Rev.No. 33/08 fabricated the rent receipt book. The order is a nonspeaking order and the same be set aside. It is therefore, prayed that order be set aside and the record of SDM, Sadar Bazar be summoned and the order dated 21.4.2008 passed by SDM, Sadar Bazar be set aside and respondents be directed to hand over the possession of Chabutra in dispute to make the ends of justice.
6. After filing of the revision, notice was issued to the respondent no.3 and also record from SDM, Sadar Bazar office was summoned. The respondent no.3 appeared but did not filed any reply. Subsequently he was directed to file the written reply considering the submission of both the parties. In reply, the respondent no.3 has disputed the contention of the petitioner and stated that Executive Magistrate is entitled to decide ''whether any and which of the parties was in possession of the subject of dispute at the date 8 Crl. Rev.No. 33/08 of the order and the order has been passed by the SDM as per law''. The SDM has passed the order after taking into account the statement of the witnesses regarding factum of possession and report of the Local Commissioner. Local Commissioner visited the disputed premises personally and met with some independent witnesses and also gave his report after due inspection of the site. The report has not been challenged before the SDM and therefore, the revision is liable to be dismissed. The respondent no.3 is residing on the abovesaid address alongwith his family members for more than 30 years and using the Chabutra on the same premises for carrying out his day to day business activity of loading and unloading of goods for and on behalf of the transporters for last more than 10 years and the same has been leased to the respondent no.3 on monthly rent by actual owner Mahant Babu Ram who is now being represented by Suresh Kumar 9 Crl. Rev.No. 33/08 GPA holder. Mahant Anil Kumar through petitioner has been disputing the ownership right of Ram Babu and has preferred an appeal against Ram Babu who has filed a suit for permanent injunction against Anil Kumar and dispute is still pending for adjudication. The order has been misunderstood and is misinterpreted wrongly by the petitioner to make favourable to him and to harass the respondent no.3. The ownership dispute is between petitioner and Suresh Kumar but unnecessarily compliant has been made against the respondent no.3. It is prayed that revision be dismissed with cost.
7. I have heard learned counsels for the parties and have carefully perused the record.
8. Perusal of record shows that a civil suit was filed by Mahant Anil Kumar through the petitioner as his attorney regarding property in dispute as well as for the other 10 Crl. Rev.No. 33/08 properties against Mahant Babu Ram. It is also a matter of record that civil suit was decreed in favour of Mahant Anil Kumar vide order dated 5.9.90. The petitioner also filed copy of that order and on page 26 of that order it is clearly mentioned that possession of the petitioner has been established either in him or through his attorney and it has also been held by the civil court that the petitioner has proved his possessory right over the property and defendant cannot be permitted to interfere in the possession of the plaintiff forcibly and without due process of law. In the order dated 21.4.2008 passed by Ld. SDM, Ld. SDM has observed that various copies of court judgements have been filed but none of these judgements throw any light on the factum of possession of the disputed premises. It seems that Ld. SDM has not gone through the entire judgement before passing the impugned order and has passed the order in haste without 11 Crl. Rev.No. 33/08 going through the entire judgement. In the civil suit No. 580/85, the dispute was not only the Chabutra in dispute but regarding whole property situated in revenue Estate of Chaukri Mubarkabad comprising in khasra No. 546/309310 311 and 354 and khasra No. 563/547309310 and 334. The ownership right as well as the possessory right of the plaintiff i.e. Mahant Anil Kumar through his attorney i.e. present petitioner has been established in that suit but it seems that Ld. SDM without going through that judgement has given his observation that none of these judgements throw any light on the factum of possession of the disputed premises. In fact it is ordered on page 26 and 27 of that judgement while deciding issue no.6 that plaintiff has proved his possessory rights over the property and defendant cannot be permitted to interfere in the possession of the plaintiff. It seems that Mahant Babu Ram was not able to get any relief from the civil 12 Crl. Rev.No. 33/08 court as the appeal of the respondent was also dismissed by the court of Senior Civil Judge, therefore now through SDM they have managed to nullify the effect of that judgement. Ld. SDM vide impugned order has nullified the judgement of civil court as well as appellate court which it has no power to do so. In fact, Ld. SDM has gone to the extent of holding that both the parties admitted that there is no dispute pending in respect of this property before any judicial or quasi judicial forum between them. It seems that despite the order of the civil court being brought into his notice, Ld. SDM has very conveniently chosen to ignore the same by giving the above said observations. The civil suit between the parties is not only regarding the Chabutra but for other properties also. Moreover, the respondent no.3 has claimed that he is only the tenant and is paying rent to one Suresh Kumar who is attorney of Mahant Babu Ram. So far as Mahant Bau Ram 13 Crl. Rev.No. 33/08 is concerned, he has already lost the civil suit filed by Mahant Anil Kumar. Mahant Anil Kumar through the present petitioner filed a civil suit against Mahant Babu Ram which has been decreed by civil court in favour of Mahant Anil Kumar and an appeal by Mahant Babu Ram against that judgement has also been dismissed. It seems that Ld. SDM without going into that judgement has passed the impugned order the only effect of which is to nullify the decree passed by the civil court. A SDM has no power to usurp the powers of the civil court and to substitute his own orders inspite of the orders of the civil court. The order passed by SDM is illegal and without any authority of law.
9. In AIR 1964 Andhra Pradesh 170 it has been held by Hon'ble High Court of Andhra Pradesh that order of SDM for appointment of receiver under section 146 Cr.P.C. passed after injunction order of the civil court is an abuse of the 14 Crl. Rev.No. 33/08 process of law and is liable to be set aside. Similar view has been taken in (2002) 3 Supreme Court Cases 700.
10. It has been further held in 106 (2003) Delhi Law Times 388 titled as Roop Lal Bhalla and Ors vs. State and Anr. that disputes as to immovable property:Object and scope of provisions: Once party acquired physical possession of the property by virtue of sale deed, even if sale deed alleged to be fraudulent or fake said party cannot be dispossessed without due process of law: until there is finding in civil suit by way of decree, possession of respondents cannot be disturbed by resorting to proceedings under Sections 145,146, Cr.P.C.: Where dispute as to possession or ownership pending before Civil Court and order of status quo passed, jurisdiction of SDM ousted in taking up proceeding under Section 145 or pass order under Section 146, Cr.P.C.:
What is permissible under Cr.P.C. is proceedings under 15 Crl. Rev.No. 33/08 Section 107 or 131 if there is apprehension of breach of peace: No Criminal Court for that purpose SDM can usurp power of Civil Court with regard to immovable property regarding possession or ownership.
11. In the present case also it seems that SDM has usurped powers of civil court and taking into account the judgement and decree passed by civil court, has passed the impugned order.
12. In view of the abovesaid discussion, the order of Ld. SDM dated 21.4.2008 is illegal and same is, therefore, set aside. Present case is remanded back to the SDM concerned who shall hear the parties afresh and pass the appropriate order after taking into account the judgement and decree of the civil court as well as of appellate court. Present revision petition filed by the petitioner is disposed of in terms of above said order. Copy of this order along with Trial court record be 16 Crl. Rev.No. 33/08 sent back to the court of SDM, Sadar Bazar, Delhi. Revision file be consigned to record room.
(MADHU JAIN) ASJ03(NORTH)/DELHI Announced in the open court on 17.8.2009.
17 Crl. Rev.No. 33/08Crl. Rev. No. 33/08
DD No.14 U/s 145Cr. PC P.S.Sarai Rohilla Padam Singh Vs. State & Others 17.8.2009 Present: None.
Vide separate order dictated and announced in the open court, present revision filed by the petitioner is allowed. Case is remanded back to court of concerned SDM who shall hear the parties afresh and shall pass the fresh order after taking into account the judgement and decree of civil court as well order of the appellate court i.e. Senior Civil Judge. Copy of this order along with Trial court record be sent to the court of SDM, Sadar Bazar, Delhi. Parties are directed to appear before the concerned SDM, Sadar Bazar on 01.9.2009. Ahlmad to send the complete record to the court of SDM, Sadar Bazar before 01.9.2009. Revision file be consigned to record room.
(MADHU JAIN) ASJ03(NORTH)/DELHI 17.8.2009