Delhi District Court
Mahabir Singh vs Mukesh Tyal And Anr on 1 March, 2024
IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 123/2021
Mahabir Singh
S/o Late Sh. Laxman Singh
R/o Village Tajpur Kalan,
Delhi.
..... Revisionist
Versus
(1) Mukesh Tayal
S/o Late Sh. Puran Chand Tayal
R/ D-003, Jhulelal Society,
Pitampura, Delhi.
(2) Savita Aggarwal
W/o Sh. L.R. Aggarwal
R/o M-285, Greater Kailash,
Part - 2, New Delhi.
.....Respondents
Date of Institution : 27.11.2021
Conclusion of arguments : 25.01.2024 & 01.03.2024
Date of Order : 01.03.2024
ORDER
1. Present revision petition is under Section 397 & 399 Cr.P.C. preferred by the revisionist against the order dated 26.10.2021 (hereinafter referred to as impugned order) passed by ld. SDM, Model Town in Kalandra under Section 145 Cr.P.C. dated 15.10.2020, directing the revisionist to remove the CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 1 of 17boundary wall within five days of the impugned order and in case revisionist fails to obey the directions, second party (respondent no.1 herein) can take help of SHO Bhalaswa Dairy for removal of the said wall. Revisionist was also restrained from constructions of wall over the passage which is allegedly commonly being used by the people.
2. It is submitted by ld. Counsel for revisionist that the ld. SDM without appreciating facts has passed the impugned order which is illegal, incorrect, improper and abuse of the process of law. It is further submitted that the impugned order is not sustainable in the eyes of law and the SDM has wrongfully directed removal of the boundary wall within five days of the impugned order and restrained the revisionist from constructions of wall over the passage which is commonly being used by the people. That there is no preliminary order which has been passed recording the satisfaction of the Ld. SDM, which is a mandatory requirement under Section 145(1) Cr.P.C.
3. On the other hand, it is argued by ld. Counsel for the respondents that the respondent no.2 had purchased this land from Mrs.Pooja Pahwa on 28.04.2006 and Pooja Pahwa had purchased this land from Smt. Tarsem Kaur on 10.02.2005 and Tarsem Kumar purchased this land from Smt. Shashi Yadav on 05.12.1986. The respondent no.1 (Mukesh Tayal) is the nephew of respondent no.2. While referring the proceedings under CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 2 of 17Section 145 Cr.P.C. to the area SDM, the police had not made respondent no.2 a party although respondent no.1 who was taking care of the property had been made a party who is the real nephew of respondent no.2 and has all the rights to deal with the property in question. That the Ld. SDM has correctly passed the impugned order.
4. Heard. Perused.
5. Briefly stated, it is version of the revisionist that he purchased a piece of land measuring 1 bigha 4 biswa, out of Khasra No.4/1, situated in village Samaypur, Delhi, through the registered sale deed dated 14.06.2006 from its erstwhile recorded owner Sh.Satpal Saini and thereafter the mutation of said purchased land was also sanctioned in favour of the revisionist in the revenue record vide mutation order dated 26.07.2007. There are two plots, plot bearing no.1 and plot no.3.
That the plot no.3 of the revisionist herein has the total area of 1200 sq. yds. (1 bigha 4 biswa) and the revisionist is the recorded owner of the same. The said plot bearing no.3 is existing at the end of a private passage and the said private passage is left out, only for ingress and outgress to/from plot no.1, 2 and plot no. 3 as the said private passage is exclusive property of the plot holders of plots no.1 to 3 only. It is pertinent to mention herein that the said area of private passage is the part of total area purchased by plot holder no.1 to 3. The said portion CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 3 of 17of passage is exclusively used by plot holders no.1 to 3.
That as the plot no.3 existed at the end of private way so the boundary wall in the open space was also raised by revisionist in the western-southern side of plot in front of godown in the open private space, so that no body enters from other plots and the said boundary wall was remained intact till 14.10.2020.
That respondent no.1 herein is neither the actual owner nor in physical possession of any plot in Khasra No.4/1 and he allegedly claimed to be a relative of one Savitri Devi.
That on 14.01.2020, the SHO PS Bhalaswa, Jahangirpuri along with respondent no.1 visited the plot of revisionist while revisionist was not present at his plot and partly demolished the old boundary wall with the help of JCB and when the revisionist reached and resisted the illegal and unlawful action of police authority, the police officials pressurized the revisionist to settle the matter with respondent no.1 and also pressurized the revisionist to accept the illegal demand of respondent no.1 for allowing respondent no.1 to use portion of plot of revisionist as common passage which is the private property of the revisionist. Revisionist was the first party before Ld. SDM.
6. Per contra, it is the case of the respondent/second party before the Ld. SDM the respondent no.2 is the owner of the property in question i.e. Khasra no.4//1(1-04), Village Samaypur, CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 4 of 17Delhi. The respondent no.2 had purchased this land from Mrs.Pooja Pahwa on 28.04.2006 and Pooja Pahwa had purchased this land from Smt. Tarsem Kaur on 10.02.2005 and Tarsem Kumar purchased this land from Smt. Shashi Yadav on 05.12.1986. The respondent no.1 (Mukesh Tayal) is the nephew of respondent no.2. While referring the proceedings under Section 145 Cr.P.C. to the area SDM, the police had not made respondent no.2 a party although respondent no.1 who was taking care of the property had been made a party who is the real nephew of respondent no.2 and has all the rights to deal with the property in question.
It is admitted that as per the record maintained by the concerned Revenue Authority of Khasra no. 4//1(1-04), Village Samaypur, Delhi, has total area of (4-16) 4 bighas 16 biswas (4840 sq yards approx) and only small portion of khasra no.4//1 touched the main road as per revenue record. It is further admitted to the extent that the revisionist is in possession of two plots of Khasra No.4//1 in village Samaypur, Delhi and denied that plot bearing no. 1 is situated on the main road and having ingress and outgress from the main Burari Road. That the factual position is that the total area of Khasra No. 4//1 in Village Samaypur, Delhi is 4840 sq yards (4-16) and 4 equal size plots i.e. (1-4) each plot were carved out from this Khasra and a 20 ft. wide common passage was given for ingress and outgress to all the 4 plots. The answering respondent no.2 is the owner and in possession of plot no.4 excluding the land used in the common CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 5 of 17passage of 20 ft. wide.
Thus, the moot point of controversy can be summed as under:
It is the case of the first party (revisionist) that they have purchased the suit land through registered sale deed dated 14.06.2006 from its erstwhile recorded owner i.e. Satpal Saini S/o Karam Chand through his son Sudershan Saini who was an attorney. On the basis of the said sale deed mutation of the said land was duly recorded in the name of first party vide mutation order dated 26.07.2007.
It is further submitted by the first party (revisionist) that they are having two plot/portion/piece of land in Kh. No. 4/1 min. As those plots are not part of this case hence am not going into the details of those plots. First party in order to prove their clam has produced photographs of the disputed land as well as electronic evidence which contains photographs and video of the suit land.
On the other hand, the second party submitted that there is a passage of 20 feet which connects the land of the applicant with the main road and by construction of the said boundary wall has blocked the passage. Mukesh Tayal is care taker of her land of Savitri Devi and when he visited the suit land on 13.10.2020, he found that the first party has erected a wall across the 20 feet vide passage and has blocked their access.
7. As regards the powers of Revision U/s 397 Cr.P.C CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 6 of 17the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in the case of Directorate of enforcement Vs. Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the law that:
"the provision of revision in Cr.P.C. suggests that the court shall limit itself to the findings sentence or order pass by the subordinate court, against which the revisionists is seeking relief before the court concerned and shall not go beyond the analysis and observations made by the subordinate court."
Section 397 Cr.P.C. unequivocally states that the High Court and Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and properity of the order of the subordinate court.
The Hon'ble Supreme Court in Directorate of enforcement Vs. Gagandeep Singh (supra) again emphasised that:
"in its revisional jurisdiction court will not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court but shall constrain itself to the findings of the lower court in the impugned order and to the question whether there is any patent, illegality, error apparent on record or incorrectness."
Now, moving forward, it is imperative to analyse the relevant provisions under Section 145 Cr.P.C.
Section 145 (1) Cr.P.C:
Procedure where dispute concerning land or water is likely to cause breach of peace.CR No. 123/2021
Mahabir Singh Vs. Mukesh Tayal & Anr.Page 7 of 17
(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.(2) ............ (3) ....................
(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 any and which of the parties was, at the date of the order made by him under sub- section (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).CR No. 123/2021
Mahabir Singh Vs. Mukesh Tayal & Anr.Page 8 of 17
Section 145 (7) Cr.P.C.:
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry.
8. The main object of proceedings under Section 145 Cr.P.C. is to secure maintenance of peace and tranquility the breach of which is threatened on account of dispute regarding actual possession of the immovable property.
9. In the light of the above and the provisions of Section 145 Cr.P.C., it is required that;
(i) A preliminary order be drawn by the Magistrate setting out reasons for holding that he is satisfied that a breach of peace concerning any land etc. exists;
(ii) That such dispute is likely to cause breach of peace;
(ii) When the Magistrate is satisfied of the above first and second condition, he shall proceed to pass a preliminary order under Sub Section (1) of 145 Cr.P.C;
(iv) Thereafter, he shall make an inquiry under Sub Section (4) of Section 145 Cr.P.C.;
(v) And thereafter, pass a order under Sub Section (6) of Section 145 Cr.P.C.;
(vi) The inquiry under Section 145 Cr.P.C. is limited to the question as to who was in actual possession on the date of CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 9 of 17passing of preliminary order irrespective of the rights of the parties;
10. The preliminary order is required to be in writing and thereafter, recording its satisfaction upon the report of a police officer stating the grounds, a notice has to be issued to the other party, who may attend the court proceeding in person or by a pleader on a specific date and time and both parties may put their written statements of the respective claims as regard the factum of actual possession of the subject of dispute. Section 145(1) Cr.P.C. explicitly talks of such a preliminary order.
In the case of Satish Sadan Vs. Prithvi Raj 1989 SCC Online Delhi 134 passed by Hon'ble High Court of Delhi, it has been held that in the absence of any formal (preliminary) order made under Section 145(1) by the Magistrate, the whole proceedings culminating in the final order would become vitiated.
In the case of R.S. Bhutani Vs. Ms. Mani 1968 AIR 1444, 1969 SCR (1) 80, the Hon'ble Supreme Court laid down the law with respect to the satisfaction of the Magistrate pertaining to the proceedings. For passing a preliminary order under Section 145(1) Cr.P.C. it was held that the satisfaction under sub-s. (1) of s. 145 is that of the Magistrate. The question whether on the materials before him be should initiate proceedings or not is, therefore, in his discretion which, no CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 10 of 17doubt, has to be exercised in accordance with the well recognised rules in that behalf.
In Sardari Lal Vs. State of Punjab 1980 Crl. LJ 1151, it was laid down that the Magistrate must record in his order the grounds of being satisfied regarding existence of a dispute with regard to possession of premises which my give apprehension of breach of peace before passing the final order. The subjective satisfaction is a pre requisite in the preliminary order under Section 145(1) Cr.P.C. Similar was the law reiterated in Ghasi Ram Vs. Surender Singh 1984 (2) Crime 724.
From the perusal of the record in the present case, there is nothing to show that any preliminary order to the effect that there was a dispute of land which was likely to cause breach of peace was recorded by Ld. Magistrate.
11. The record file reveals that Ld. Magistrate had been calling upon the status report of Halka Patwari, as is revealed vide orders dated 17.02.2021 and 26.03.2021. A report dated 18.06.2021 had been filed by Hakla Patwari in favour of the revisionist and in the said report it was clearly described that there is no public way in Khasra No. 4//1 and the revisionist having the total area of 1 bigha 4 biswa on spot and the plot of revisionist is partly built up and open area enclosed with boundary wall. It is also pertinent to mention that in the said report the name and address of plot holder no.2 also disclosed by CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 11 of 17Halka Patwari, however, the said plot holder were not made party by Ld. SDM.
However, without any reasoned findings, the Ld. SDM vide orders dated 21.06.2021, called for further revised Patwari Report and thereafter straightway put the matter for final arguments on 28.09.2021 and thereafter, the without affording any opportunity to the revisionist to rebutt the revised Patwari Report, passed the impugned order. There is no specific preliminary order passed by the Ld. SDM on his satisfaction one to proceed with the matter as was required under the mandate of Section 145(1) Cr.P.C. and further even the final order has been based on a revised report of Halka Patwari without any reasoning as to why the first report which was prima facie supporting the case of the revisionist not considered and without explaining the need for calling for another revised report.
12. Further, from the impugned order of concerned SDM 26.10.2021 and the certified copy of the record file, it is evident that a police report/kalandra under DD No.41A dated 15.10.2020 had been registered at PS Bhalswa Dairy and there was a dispute between the first party (revisionist herein) and the second party over a wall and the first party intended to construct a wall next to khasra no. 4/1, min (2-8) in Village Samay Pur, Delhi, which was opposed by second party who submitted that construction of wall would obstruct their passage which was being used by them.
CR No. 123/2021Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 12 of 17I have perused the kalandra under Section 145 Cr.P.C. which shows that the first party i.e. the revisionist had purchased 01 bigha 04 biswa in Khasra no. 4-1 from one Sudershan Saini on 14.06.2006 and there is no mention of any such gali or common passage as was claimed by the respondents whereas the second party had an agreement dated 30.01.1990 and 29.07.1993 showing a 20 foot common passage. The entire preliminary inquiry had been conducted by ASI Mukesh Kumar, PS Bhalswa Dairy, however, he has not been examined by the SDM, who must have had the first hand knowledge of the spot and the factum of dispute possession on the given day
13. The next contention of the revisionist was that the respondent has no locus and they just claim themselves to be the relatives of one Smt.Savitri Devi, who was not made a party to the proceedings. The Ld. SDM had noted that Savitri Devi was represented by her SPA holder Mukesh Tayal, who had filed an application for inducting her as a necessary party in the proceedings before the SDM. It was alleged that Mukesh Tayal was her nephew and caretaker of her land, as is revealed from para no.7 of the impugned order, however, the Ld. SDM has not given any finding regarding the application of Smt. Savitri Devi which seems to be still pending.
14. There are no statements of public witnesses who may be present at the relevant time and the Ld. SDM has not CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 13 of 17summoned any such public person who could have been fruitful in explaining the actual breach of peace, if any, at the spot and the factum of possession as it existed.
15. Further, from the impugned order, it is revealed specifically from para no.9 that the same is simply based on the photographs of the property and a subsequent status report filed the Patwari dated 20.09.2021. None of the parties have been given any opportunity to lead preliminary evidence and no reason in the order has been afforded as to why the subsequent report of the Patwari was called when the first report dated 18.06.2021, as detailed above, was already available and was not rejected by the SDM.
16. It is not within the ambit of the powers of the Magistrate under Section 145 Cr.P.C. to decide about the actual title of the land since the only object is to bring peace and tranquility. The findings if any, particularly about the possession and title to the land cannot be conclusive, the rights of the parties on such issue being essentially a matter to be adjudicated by a Civil Court but the Ld. SDM has called for the property documents of both the parties and passed a blanket order for demolition of the wall without prima facie assessing if at all it blocked the passage which belongs to the respondent or not or whether it was a private or common passage.
CR No. 123/2021Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 14 of 1717. Further, under Section 145(4) Cr.P.C., the issue of possession and dispossession should essentially be within two months from the date of kalandra but there is no such specific date of dispossession which finds mention in the order.
18. In the case of Indira Vs. Basantha 1991 Crl.J 798, it had been held that the jurisdiction conferred upon an Executive Magistrate under Section 145 of Cr.P.C. is an exceptional one and the provisions of the Section have to be strictly followed. The object of the Section is not to provide parties with an opportunity to bringing their civil disputes before a criminal court...but to arm the Magistrate concern with the power to maintain peace within his local area. Therefore, a duty is caste on the Magistrate to guard against the abuse of the provisions.
Further, it had been held in the case of Nagammal Vs. Mani 1966 LW Crl. 101, P.M. Gounder Vs. M. Gounder 1968 LW Crl. 179 and Janaki Ramachandran Vs. State 1988 LW Crl. 147 that if there is absolutely nothing in the preliminary order showing expressly the ground that the Magistrate being so satisfied which are in the nature of conclusion arrived at by him on the report or information it could be impossible for the parties called upon to put in their claims...
19. In the present case, as already discussed above, the Ld. Magistrate has not given any reasoning or grounds of his satisfaction as envisaged under Section 145(1) Cr.P.C. Further, CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 15 of 17the Ld. Magistrate seem to have blindly believed on a revised status report filed by Halka Patwai without affording any reason as to why the earlier report was not considered or grounds for his dis-satisfaction to call for another report and has not examined the concerned public witnesses, if any and rather based his final order only on the photographs and thus, the essential requirements envisaged under Section 145 Cr.P.C. before exercising the said powers, have not been met with.
20. In view of the aforesaid findings, the matter is remanded back to the concerned SDM with the directions to re- appraise the documents of the parties, giving opportunity to file objection, if any, to the two reports of the Halka Patwai, examined independent witness, if any and re-hear arguments qua the factum of possession as it existed prior to the passing of the impugned order and thereafter affording both the parties with due opportunity, pass appropriate orders in accordance with law. The worthy District Magistrate is directed to ensure that the proceedings are conducted expeditiously as far as possible. Revision petition disposed off accordingly.
21. TCR, if any, be sent back to the concerned SDM alongwith copy of this order, who shall serve upon the notice to both the parties for further proceedings, in the light of the aforesaid observations.
CR No. 123/2021Mahabir Singh Vs. Mukesh Tayal & Anr.
Page 16 of 1722. Nothing stated herein shall prejudice the rights of either of the parties qua the factum of ownership and title which is subject of civil jurisdiction.
23. Revision file be consigned to Record Room.
Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date: 2024.03.01 16:56:59 +0530 Pronounced in open (SHEFALI SHARMA) Court on 01.03.2024 ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT, ROHINI COURTS, DELHI CR No. 123/2021 Mahabir Singh Vs. Mukesh Tayal & Anr. Page 17 of 17