Delhi District Court
Sh. Pradeep Kumar Saini vs The State (Gnct Of Delhi) on 30 April, 2015
...1/
IN THE COURT OF SH. R. B. SINGH ASJ02 NORTH DISTRICT,
ROHINI COURTS : DELHI.
CR NO. 08/14
1. Sh. Pradeep Kumar Saini
2. Sh.Shiv Prakash Saini
Both Sons of Late Sh. Chandu Lal Saini,
R/o House No. 29, Village Kushak Hiranki,
Alipur, Delhi110036. ....... Petitioners
Versus
1. The State (GNCT of Delhi)
2. Smt. Krishna Aggarwal,
W/o Sh. Vinod Aggarwal
3. Smt. Saroj Aggarwal,
W/o Sh. Subhash Aggarwal,
(Respondent No.3 is being represented
by her husband Sh. Subhash Aggarwal
as her GPA).
4. Smt. Arti Aggarwal,
W/o Sh. Raj Kumar Aggarwal,
(Respondent No.4 is being represented
by her husband Sh. Raj Kumar Aggarwal
as her GPA).
All R/o G97, Ashok Vihar, PhaseI,
Delhi110052. ....... Respondents
CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 1 of 38
...2/
O R D E R
By this order, I propose to dispose of a Criminal Revision U/s 397 read with Section 401 of Cr.P.C against the order dated 12.12.2013 (09.12.2013) passed by the court of Sh. Rajnish Kumar Singh, ld. SDM Alipur, Naya Bans, Delhi, in case No. 111/SDM/N/08/6175 dated 12.12.2013 (09.12.2013) entitled as State Vs. Subhash Aggarwal & Ors. (Party No.1) and Sh. Pradeep Kumar Saini & Ors. (Party No.2) U/s 145 Cr.P.C. whereby the ld. SDM has ordered to take possession from the petitioners and to hand over the same to respondents No.2 to 4 immediately.
2. The brief facts for the disposal of this revision petition are as under :
The petitioners are agriculturists by profession. They were earning livelihood of their family by cultivating the land and getting income after selling their crops. The present revision petition is pertaining to agricultural land comprising Khasra Nos. 249 (416), 250 (08), 251 min (48), 252 (416), 279 (416), 280 (211), 281 (22), 282 (416) & 233 (215) situated within the revenue estate of Village Hiranki, Delhi. The petitioners are the LRs of late Sh. Chandu Lal Saini, S/o Sh. Umrao Singh. Earlier way back in 1986, Sh. Jagdev Singh, Sh. Mahender CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 2 of 38 ...3/ Singh and Sh. Rajender Singh, all Sons of late Sh. Ranjeet Singh, were recorded as owners / bhumidars of the aforesaid agricultural land. Although, said land was recorded in their names but the family of the petitioners including their father were cultivating said land. In 1986, the respondents No.2 to 4 entered into agreement with Sh. Jagdev Singh and his brothers and Sh. Dev Dutt, S/o Sh. Shri Chand to sell but they were not having sufficient amount to honor the said agreement. At the relevant time, on account of family misunderstandings, father of the petitioners had to sell his own agricultural land situated within the village as such was having meager amount in his hand. The respondents No.2 to 4 and their attorneys somehow got knowledge of the same and as such all of them requested Sh. Chandu Lal, father of the petitioners, to invest some amount to purchase the part of land in question in his name. As per oral terms of settlement, settlement arrived at between father of the petitioners and the attorney of respondent No.2, it was decided that the father of petitioners would pay a sum of Rs.2 lacs to the respondents No.2 to 4. It was further decided that 2 acres out of the aforesaid land, would be got registered in the name of father of the petitioners. It was further decided that the documentation pertaining to the ownership of 2 acres of land would be prepared and got registered in the name of father of the petitioners. This agreement was arrived before the petitioners, Mr. Dharampal, S/o Sh. Sardara Ram, the relative of the petitioners and other CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 3 of 38 ...4/ members of the society. After payment of amount, it was revealed that the documentation pertaining to whole of the aforesaid land was got registered by them in the names of respondents No.2 to 4. Having knowledge of the same, the petitioners, their father and said Dharampal personally met to respondents No.2 to 4 and their attorneys and requested them either to return the amount invested by Mr. Chandu Lal, father of the petitioners, or to follow the terms of the settlement and to transfer 2 acres of land in his name. The petitioners and others also raised strong protest towards the deceitful behaviour of the respondents No.2 to 4 and their attorneys as at the relevant time, the family of the petitioners were in actual, physical and constructive possession of the land. The respondents No. 2 to 4 and their attorneys kept the petitioners and their father in good faith that the proposed sellers were not interested to get transfer their land in the name of father of the petitioners. They assured them either to refund the amount or to get transferred 2 acres of land in the name of father of the petitioners. Since October, 1986, till his death, Mr. Chandu Lal, father of the petitioners, secured the possession of the aforesaid land. The father of the petitioners expired on 14.10.1999. Since the death of their father till 21.01.2014, the petitioners and their rest of the family were possessing, occupying and cultivating the land in question. They were throughout remained in undisputed, actual, physical, peaceful and constructive possession of the land in question. Their possession over the CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 4 of 38 ...5/ said land was absolute and unqualified one.
3. During subsistence of the possession of father of the petitioners, the petitioners and whole of the family, for the purpose of smooth farming and to store the agricultural produce, got constructed a 12x12 room in Khasra No.249 and later in Khasra No.233 and a room in 2004. They also got fixed tubewell in it. The petitioners also got constructed a large room to tether the cattle's in Khasra No.279 and they also erected steel near and around the land in question. The petitioners also took an electricity connection to run the tubewell. In 1998, they also purchased their own tractor. During subsistence of their possession and occupation of land in question, time to time, the petitioners used to farming of wheat, paddy, different flowers and vegetables etc. They also used to purchase the seeds, pesticides and different fertilizers for said farming. The copies of the seeds, fertilizers and petrol are collectively annexed as Annexure P9. They also used to sell the agricultural products in market. The copies of some of the bills issued by the concerned vendors are collectively annexed as Annexure P10. The petitioners and their father also used to maintain record pertaining to expenditure and earnings of agricultural land in different heads in a copy, diary and register. They also used to maintain attendance register and payments made to the labours engaged by them while farming by them on the land CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 5 of 38 ...6/ in question. While possessing and occupying the land in question, there was fire incident in 2007 in fodder storage kept by the petitioners in room stood at Khasra No.279. The petitioner No.1 had to call the firebrigade. The computer generated slip acknowledging the filing of the said complaint issued by the Delhi Fire Service is annexed as Annexure P12. During subsistence their absolute possession, number of times the petitioners requested the respondents No.2 to 4 and their relations either to pay the said amount of Rs.2 lacs or to get transferred said 2 acres of land in their names but they kept on avoiding them on one pretext or the other. The petitioners are in possession of the writing given by Mr. Vinod Aggarwal, the attorney of the respondent No.1. The copy of the said writing is annexed as Annexure P13. The petitioners were continuously possessing and occupying the land in question but the revenue authorities at their behest were not entering their name in the revenue records of land in question. As such, since 12.09.2006 till today the petitioners had filed different applications before Tehsildar, ld. SDM and Deputy Commissioner (revenue concerned) for entering their name in the revenue records of the land in question. Since October, 1986, their rights had been matured like Bhoomidar and the revenue authorities were not entering their names in the revenue records and as such finding no alternative, on 08.04.2008 vide Case No. 1374/RA/N08, entitled as "Pradeep Kumar Saini and another Vs. Smt. Krishna Aggarwal and CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 6 of 38 ...7/ Ors., the petitioners had to file a revenue case U/s 85 of DLR Act, before the ld. SDM, Alipur at Naya Bans, Delhi. This case is pending adjudication and the same is now fixed for 10.03.2014. The summons of the case U/s 85 of DLR Act were served upon the respondents No.2 to 4. Upon receipt of the summons, the respondents No.2 to 4 turned hostile. Infact, upon genuine claims of the petitioners, their volcano outburst. As a result, the said respondents colluded with different public authorities including revenue officials and local police and started filing false complaints against the petitioners. With a view to terrorize and defeat the genuine claims of the petitioners, all of them also started visiting the land in question to take forcible possession. Since the public authorities were bent upon to harass and humiliate the petitioners in different manner and were not entering their names in the revenue records of land in question, as such the petitioners had to file a Civil Writ Petition No.7896/2009 entitled as "Sh. Pradeep Kumar Saini Vs. GNCT of Delhi" before the Hon'ble High Court of Delhi and the Hon'ble High Court directed the revenue officials to enter the names of the petitioners in the revenue records against the land in question after verification. The copy of the said order is annexed as Annexure P17. Consequently, the Tehsildar concerned was pleased to enter the possession of the petitioners at once in P5. The said request is annexed as Annexure P18. The order dated 06.05.2009, passed by the Hon'ble High Court of Delhi was duly CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 7 of 38 ...8/ challenged by the respondents No.2 to 4 before the Hon'ble High Court of Delhi. The said petition was dismissed by the Hon'ble High Court of Delhi vide order dated 13.08.2010, which is annexed as Annexure P19. As a result, the respondents No.2 to 4 colluded with the corrupt revenue officials, which resulted into decline of filing the entry of P5 in the name of the petitioners. This order was duly challenged by the petitioners before the Hon'ble Financial Commissioner by way of appeal. The corrupt officials of the local police of P.S. Alipur, Delhi, procured certain baseless allegations and filed proceedings U/s 107/150 Cr.P.C. before the ld. SDM concerned. These proceedings have been dropped. Further, in collusion, the corrupt police officials of the local police of P.S. Alipur, Delhi, started harassing, humiliating, abusing, torturing and pressurizing the petitioners for their illegal demands and threatened them either to scrambled with the illegal demands of the respondents No.2 to 4 and their associates else whole of the family of petitioners would be implicated in number of false cases. As a result of collusion, the local police was bent upon to misuse their powers and dress in favour of the respondents No.2 to 4. The local police of P.S. Alipur, Delhi, concocted, fabricated, manipulated and procured certain baseless allegations against the possession of the petitioners and malafidely launched the proceedings U/s 145 Cr.P.C. Aggrieved from the illegal acts and conducts of the corrupt officials of the local police, the petitioners were constrained to inform CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 8 of 38 ...9/ senior police officials of Delhi Police. Although the respondents No.2 to 4 had no concern with the agricultural land in question but after taking the illegal benefits of procured police report, they also filed their baseless claims through their attorney after forging a GPA dated 10.10.2008 in their favour. Meanwhile, upon the result of the aforesaid Vigilance inquiry, it was held that the petitioners and their family was in continuous and uninterrupted absolute, actual, physical and constructive possession on the land in question and as such vide order dated 30.01.2009 the ld. SDM was pleased to pass an interim order in favour of the petitioners. The possession of the petitioners over the land was confirmed. The interim order dated 30.01.2009, passed by the ld. SDM concerned was never challenged by the respondent No.2 to 4 before any authority. Copy of the said inquiry report is annexed as Annexure P21.
4. The respondents No.2 to 4 are man of means and resources and as such they in collusion with corrupt officials of ld. SDM staff, shockingly, got the file destroyed / misplaced. After a long gap of 8 months, upon procured documents of the respondents No.2 to 4, a file was reconstructed by the court of ld. SDM concerned without making any efforts for tracing and fixing the responsibility for the same. Meanwhile, due to some foul play on the part of the earlier counsel, the petitioners CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 9 of 38 ...10/ have to appoint a new counsel namely Mr. Arvind Vats, Chamber No. 716, Rohini Courts, Delhi. During the pending proceedings, number of times attempts were made by the respondents No.2 to 4 and their associates to take forcible possession of land in question from the petitioners. Finally, in order to secure their possession, the petitioners had to file a Civil Suit No. 61/13 entitled as "Pradeep Kumar Saini and Anr. Vs. Smt. Krishna Aggarwal and Ors.", presently, this case is pending adjudication in the court of Sh. Gagandeep Singh, ld. Senior Civil Judge, Rohini Courts, Delhi, and is now listed for 05.03.2014. Thereafter, the proceedings of the aforesaid Kalandra was fixed for evidence of the parties. In order to pursue their forged and fabricated claims, the respondents No.2 to 4 filed their respective evidences through their attorney. Mr. Subhash Aggarwal tendered his evidence by way of affidavit as attorney of respondent No.3 while Mr. Raj Kumar Aggarwal tendered his evidence by way of affidavit as attorney of respondent No.4 and then closed the evidence. No evidence, whatsoever, was adduced by and on behalf of the respondent No.2. The petitioner No.1 has also filed his evidence by way of affidavit in support of genuine claims of the petitioners. The petitioner No.1 also wanted to tender the records pertaining to Vigilance inquiry, order dated 06.05.2009 passed by the Hon'ble High Court of Delhi, record pertaining to the aforesaid civil suit, record pertaining to the proceedings U/s 85 of DLR Act pending before CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 10 of 38 ...11/ the ld. SDM Court and other relevant documents. But the ld. Counsel for the petitioners intentionally, deliberately and for the reason best known to him, wrongly and illegally misled the petitioners. The said counsel also misled the petitioners that there was no need to file aforesaid documents on record at that stage and the same would be filed at the final stage. Thereafter, the aforesaid case was finally heard by the ld. SDM and the same was reserved for orders. On 21.01.2014, the petitioners and their family were enjoying their peaceful and uninterrupted possession on the land in question. Both the petitioners had gone to Fatehpuri, Delhi, market to sell the product of flowers taken from the land in question and at about 12.30 PM, the petitioner No.1 received a telephonic call on his mobile No.9350273599 from 9871183488 pertaining to visits and threats of Mr. Praveen Kumar, who acted as attorney to attorneys of respondent No.2 to 4, alongwith their at least 60 goonda elements, police officials, CO, Kanungo etc. to take forcible possession of the land in question. The petitioner No.1 immediately called his counsel on his mobile phones and asked about the orders, if any, passed in the aforesaid case. At about 2.30 PM, when the petitioners reached at their residence, they were shocked to reveal that the aforesaid Mr. Praveen Kumar, goonda elements and corrupt officials of revenue staff and Delhi Police, in the name of compliance of order dated 12.12.2013 (09.12.2013) passed by the ld. SDM, had already trespassed into the land in question. The detethered CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 11 of 38 ...12/ cows and pushed out them on road and destroyed the standing crops and implanted the cemented poles and also put steel wire near and around land in question. While inquiry, on 22.01.2014, the petitioners immediately, rushed to the court of ld. SDM. When the petitioners applied for certified copies of the order dated 12.12.2013 (09.12.2013), the ld. Presiding Officer himself rebuked the petitioners that the order has already been complied with and the petitioners are no more in need of the same. Aggrieved from the gross professional misconduct and breach of trust on the part of their counsel, Mr. Arvind Vats, on 03.03.2014, they filed a complaint before the Bar Council of Delhi. Hence, aggrieved by the order dated 12.12.2013 (09.12.2013) of the ld. SDM, the revisionists has filed this revision on the following grounds :
i) That the order dated 12.12.2013 (09.12.2013) passed by the ld. SDM is based on surmises and conjectures which is against the facts of the case on record and is, thus, liable to be set aside and quashed and the petitioners be put in possession of the land in question.
ii) That while passing the order dated 12.12.2013 (09.12.2013), ld. SDM has acted in an arbitrary and prejudicial manner without looking into the court placed before it and as such the impugned order is liable to be set aside.
iii) That the ld. Trial Court has failed to appreciate the fact CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 12 of 38 ...13/ that at the time of deciding the present Kalandra, a civil suit for injunction against the forcible dispossession was pending between the same parties before the Civil Court, Rohini Courts, Delhi. The ld. Trial Court has failed to appreciate the fact that the petitioners have also filed a petition U/s 85 of DLR Act before the ld. Trial Court itself.
iv) That the ld. Trial Court has failed to appreciate the fact that perusal of the following reveals that the impugned order dated 12.12.2013 (09.12.2013) passed by the ld. SDM Court is bias, arbitrary, in gross abuse and misuse of powers :
a) That the dispute in question was referred by the police in the year 2008 while the same was decided on 09.12.2013 after the lapse of long 5 years.
b) That the original file containing the absolute records was deliberately destroyed by the staff and no responsibility has been fixed on any one.
c) That the petitioners have never supplied with the copies of reconstructed file and they are ready to place on record the certified copies taken by them in due course.
d) That the impugned order is self contradictory one and no fair opportunity has been provided to the petitioners which has resulted into violation of principal of natural justice.
CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 13 of 38 ...14/
e) That the compliance of the impugned order was completed on 21.01.2014 itself i.e. without attaining the finality of impugned order i.e. without lapse of period of revision or otherwise.
f) That while forcefully taking the possession from the petitioners, the same was neither handed over to the respon dents No.2 to 4 nor they were physically present at the spot. The possession of the land in question was given to one Mr. Praveen Kumar, who again acted as attorney of respondents No.2 to 4.
v) That the ld. Trial Court has failed to appreciate that the respondents No.2 to 4 are / were in possession of the land in question in view of the following facts :
a) In view of the crossexamination of PW1 & PW2, it is crystal clear that said revenue record Ex. P1 to 29 is manipu lated, fabricated, procured and baseless one.
b) PW2 has clearly stated that said Ex. P1 to 29 has not been prepared by him.
c) Ex. P1 to 29 nowhere contain the signatures of any identity of said respondents.
d) No circumstantial evidence like, statement of previous owner who handed over the possession of land in question to CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 14 of 38 ...15/ said respondent, statement of labours and tractor owner, photographs of said land, watering person, electricity bills, slips of seeds, fertilizers and pesticides, slips issued by concerned commission agents against selling of crops etc. have not been placed on record.
e) Mr. Subhash Aggarwal, said socalled GPA has claimed his own possession on said land.
vi) That the ld. Trial Court has failed to appreciate the fact that in all complaints filed by the respondents No.2 to 4, there finds no mention of execution of GPA in favour of said attorneys and PW1 was never empowered to make any deposition on behalf of said respondents.
vii) That the ld. Trial Court has failed to appreciate the fact that the impugned order dated 12.12.2013 (09.12.2013) is in gross abuse and misuse of the process of law in view of the fact that the respondents No.2 to 4 throughout claimed their possession of land in question whereas CCTV footage reveals continuous possession of petitioners on the land in question and on 21.01.2014, the possession of land was snatched from the petitioners and handed over to one Mr. Praveen Kumar, known land grabber of area, stated to be their another GPA.
viii) That the ld. Trial Court has failed to appreciate the fact CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 15 of 38 ...16/ that the party No.1 had to prove its case with proper and reliable evidences independently.
ix) That the ld. Trial Court has wrongly arrived at conclusion that the photographs placed on record by the petitioners are not proof of their possession. The photographs have been taken in due course as such the same are proper proof of possession of the petitioners.
x) That the ld. Trial Court has wrongly arrived at conclusion that the Kachi Bahi is not proof of any possession of the petitioners on the land in question. The said Kachi Bahi has been prepared by the petitioners time to time and in due course.
xi) That the ld. Trial Court has wrongly arrived at conclusion that since the Kachi Bahi does not bear any Khasra number, rate, market value and receipt of competent authority, as such that is not any evidence. The petitioners are rural and agriculturists by profession having lack of knowledge.
xii) That the ld. Trial Court has wrongly arrived at conclusion that there was no agreement of any loan between the father of the petitioners and the said respondents and the law recognize the oral agreement of the parties.
xiii) That at the time of passing of the impugned order, the ld. Trial Court has absolute knowledge that filing of police CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 16 of 38 ...17/ complaints, complaints before revenue authorities and outcome of vigilance inquiry, filing of the Writ Petition and the order passed by the Hon'ble High court of Delhi, pendency of petition U/s 85 of DLR Act. Hence, the impugned order is liable to be setaside.
xiv) That it is needful to mention here that since 1986, the petitioners and their family are in actual, physical, cultivatory possession of the land in question. While possessing, cultivat ing and having occupation on the land in question, they haveprepared certain records pertaining to the said land such as photographs, slips issued by commission agents, slips issued by petrol pump dealer, RC of tractor, statement of the owner of hired tractor, electric bills, seeds, fertilizers, pesticide, bill etc. The rights of the petitioners have been matured equivalent to Bhumidar of the land in question.
xv) That due to misleading advice, the counsel for the petitioners intentionally and deliberately and out of his malafide and dishonest intentions did not placed said documents on record which has resulted into grave miscarriage of justice and serious prejudice has been caused to the petitioners. The petitioners have lodged a complaint on 03.03.2014 against the said counsel with Bar Council of Delhi CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 17 of 38 ...18/ for his malafide and gross professional misconducts.
xvi) That the ld. Trial Court while passing the impugned order has not exercised the powers vested by law.
xvi) That the ld. Trial Court has passed the impugned order in a hasty and mechanical manner.
It is, therefore, prayed that the court may call for the record of the case No.111/SDM/N/08/6175 dated 12.12.2013 entitled as State Vs. Subhash Aggarwal & Ors. (Party No.1) and Sh. Pradeep Kumar Saini & Ors. (Party No.2) U/s 145 Cr.P.C. lying in the court of Sh. Rajnish Kumar Singh, ld. SDM (Alipur), Naya Bans, Delhi, to look into the legality and propriety of the impugned order and to restore the possession of the petitioners on the land in question and also to restrain the respondents No. 2 to 4 and their associates permanently in interfering in the peaceful possession of the petitioners as well as to setaside the impugned order dated 12.12.2013 (09.12.2013).
5. Ld. Counsel for the petitioners has also submitted that it is a settled position of law that while exercising the powers U/s 145(1) Cr.P.C. with a view to prevent a breach of peace on account of continuous disputes relating to physical possession of any land / water between the parties, the ld. SDM can initiate inquiry to decide as to who was in actual possession of same as on the date when the cognizance to CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 18 of 38 ...19/ conduct the inquiry was taken irrespective of their respective rights, titles or interests to possess the same. The ld. SDM can pass necessary order for restoration of actual possession of said party on said land. The ld. SDM cannot disturb the settled actual possession of the party irrespective of any right, title or interest. The ld. SDM was having knowledge of the aforesaid pending civil proceedings. Despite pending civil litigations and even the petition U/s 85 of DLR Act, the ld. SDM ignored the same which was not at all permissible. Perusal of the sale deed dated 03.05.2013 reveals that on 03.05.2013, the respondents No.2 to 4 had not only sold the land in question to M/s Linnet Creations Pvt. Ltd. for considerations during StatusQuo order dated 30.01.2009. One Mr. Subhash Aggarwal, the GPA of respondent No.3 has filed his evidence. Respondents No.2 to 4 have not adduced the evidence. As such the ld. SDM has wrongly arrived at conclusion that they have proved their case. On the other hand, the petitioner No.1 has examined himself as DW1 and has led his primary evidence. The petitioner No.1 has also placed on record all the primary, natural and circumstantial evidences which establishes settled possession of petitioners on the land in question from October, 1986 till 21.01.2014 when they were forcibly dispossessed under the garb of impugned order. The respondents indulged in illegal sale and purchase of the land in question. Hence, it is, prayed that the order of the ld. SDM may be setaside and the necessary order for CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 19 of 38 ...20/ restoration of possession of the petitioners on the land in question may please be passed in the interest of justice.
6. On the contrary, it has been submitted on behalf of the respondents No.2 to 4 that earlier way back in 1986, the abovesaid land was purchased by Smt. Krishna Aggarwal, Smt. Saroj Aggarwal and Smt. Aarti Aggarwal from the previous owners Sh. Brij Bihari Gupta, S/o Sh. S.C. Gupta and Sh. Jagdev Singh, Sh. Mahender Singh, Sh. Rajender Singh, Smt. Shanti Gupta, W/o Sh. S.C. Gupta, Smt. Mamta Gupta, W/o Sh. Brij Bihari Gupta etc. vide registered sale deeds and the mutation in this effect were also sanctioned in favour of Smt. Krishna Aggarwal, Smt. Saroj Aggarwal and Smt. Aarti Aggarwal in 198687. The Khasra Girdawri bearing the names of the respondents i.e. showing the names of the recorded owners namely Smt. Krishna Aggarwal, Smt. Saroj Aggarwal & Smt. Aarti Aggarwal from 198687 to 201213 have already been submitted dated 03.03.2015 with list of documents and same is annexed as Annexure P1. There is a superficial allegation by the petitioners that their father namely late Sh. Chandu Lal paid Rs. 2 lacs way back in the year 1986 to the attorney of respondent No.2 and it was decided that 2 acres out of the aforesaid land would be got registered in the name of father of the petitioners but after the alleged payment of Rs.2 lacs, documentation pertaining to said land was got registered in the name CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 20 of 38 ...21/ of the respondents only. The father of the petitioners Sh. Chandu Lal expired on 04.10.1999 but he did not lodge any complaint before any authority in connection with said sale deed or alleged amount paid by him. The petitioners came out of blue and after 22 years of the alleged incident and filed a case before the ld. ADM (Alipur) on 08.04.2008 vide case No.1374/RA/N08, titled as "Pradeep Kumar Saini and Anr. Vs. Smt. Krishna Aggarwal and Ors." U/s 85 of DLR Act. Keeping in view the fallacious intention of the petitioners, the respondents sent complaint to ACP, DCP and SHO, Alipur dated 21.10.2008 that the petitioners want to possess their abovementioned land illegally. The action was taken on the complaint sent to the concerned SHO dated 21.10.2008 whereby on 22.10.2008, Kalandra was prepared and sent to ld. SEM, Outer District, vide DD No.35A, U/s 107/150 Cr.P.C. by SHO Alipur alongwith his staff who have been made witness under the said Kalandra proceedings and it has been specifically mentioned in the said Kalandra that all the respondents were in possession of the said land. After registration of the Kalandra proceedings dated 21.10.2008, the concerned ld. SDM initiated the proceedings U/s 145 Cr.P.C. and finally vide order dated 30.05.2009 directed to maintain "statusquo" to the parties. The petitioners filed a Writ Petition(C) before the Hon'ble High Court of Delhi No. 7896/2008 and CM 3712/2009 whereby the Hon'ble High Court of Delhi vide order CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 21 of 38 ...22/ dated 06.05.2009 ruled "make necessary entries in the revenue records with regard to possession in accordance with law, within eight weeks from today". The observation given by the Hon'ble High Court of Delhi was interpreted in wrong manner by Revenue authorities and name of the petitioner i.e. Pradeep Saini was entered in form P5, dated 16.03.2010 in pursuant to the order of the Hon'ble High Court of Delhi. The respondents approached to the Hon'ble High Court of Delhi under SC(C) 7896/2008 U/o 1 Rule 10 CPC whereby the Hon'ble High Court of Delhi while clarifying and recalling the previous order i.e. 06.05.2009 mentioned that "the said apprehension is misplaced. This court had not directed the revenue authorities to act one way or the other. As aforesaid, in the present case, this court has not directed the revenue authorities to enter the name of the petitioners in Form P5A", the said observation was given vide order dated 13.08.2010. After the said order of the Hon'ble High Court dated 13.08.2010 and considering the wrong interpretation of the previous order of the Hon'ble High Court, the name of the petitioner Sh. Pradeep Saini was deleted by Revenue authorities from Form P5 vide order dated 27.09.2010 mentioning that "their assertion to be in cultivator possession for the last 21 years demolished their case, in as much as, on the date of sending of kalandra, they were not found in possession, secondly, in case, the applicants were in cultivator possession CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 22 of 38 ...23/ of the land in question for the last 21 years then why not they move the similar applications for previous cultivator seasons, applicants have absolutely failed in proving that they are in cultivator possession of the land in question".
7. The concerned ld. SDM after considering the matter, documents, evidences in details, vide order dated 09.12.2013 decided the Kalandra proceedings U/s 145 in favour of the respondents and the respondents were declared the owner and in possession of the land mentioned above. After passing the order by the ld. SDM in favour of the respondents on 12.12.2013, N.O.C. was granted in the name of the respondents after scrutinizing all the formalities and documentations. On 30.05.2009, when Statusquo was granted, the respondents were in possession of the aforesaid land as per the Kalandra report prepared by SHO, Alipur alongwith witnesses dated 22.10.2008. Being in possession of the said land, sale deed was made by the respondents but same was executed by the respondents in the name of Linnent Creation dated 18.12.2013 i.e. after the order of the ld. SDM in favour of the respondents vide order dated 09.12.2013. The abovementioned land has been sold through Sale Deed executed on 03.05.2013 by Smt. Krishna Aggarwal, Smt. Saroj Aggarwal & Smt. Arti Aggarwal in favour of M/s CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 23 of 38 ...24/ Linnet Creations Pvt. Ltd. through its director Sh. Vivek Garg, S/o Sh. K.L. Garg, registered office at I273, Sector3, Bawana Industrial Area, Delhi, in consideration of Rs.3,46,71,000/ through EStamp Certificate No. INDL10175697801676L, paying stamp duty of Rs.20,80,260/ regarding the registration of the abovementioned Sale Deed. The said land was mutated in the name of M/s Linnet Creation Pvt. Ltd. On 02.01.2014 after registration of the said sale deed. The petitioner also filed a complaint U/s 156(3) Cr.P.C. against the respondents in order to harass them in the court of Sh. Ashish Aggarwa, ld. M.M., Rohini Courts, Delhi, where after considering the matter in all perspective, the application filed was dismissed by the ld. C.M.M. vide order dated 07.05.2014 which is now pending for revision. The petitioners in support of their claim filed "Kachi Bahi" maintained by them but the said Kachi Bahi is hand written and maintained regarding the expenses and earning. However, entries made in Kachi Bahi do not reveal any Khasra number nor weight nor quantity. Further, the said Kachi Bahi produced by the petitioners are from the year 1989 to 2001 and there is no Kachi Bahi after 2001 neither it was produced before the ld. SDM. The petitioners in their claim produced photographs pertaining to land mentioned herein but the said photographs were neither produced before police authorities nor filed earlier in the proceedings before ld. SDM at initial stage. The said photographs cannot be treated as a valid document to prove the CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 24 of 38 ...25/ possession over the land mentioned herein.
8. Ld. Counsel for the respondents No.2 to 4 has submitted that the revisionists have produced some additional documents for consideration before this court i.e. electric bill of tubewell at the land in question, written statement of a tractor owner who claimed to be cultivating the land in question, some more frivolous complaints to ACP / DCP. It is pertinent to mention that all these documents which are being produced here, were not produced before the ld. SDM. The Hon'ble Supreme Court while deciding the question of acceptability of additional documents at revisional stage has categorically ruled in a case entitled as State of Kerala Vs. Puttumana Illath, AIR 1999 SC 981, Section 401 Cr.P.C. that :
"In its criminal jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order .... but it would not be appropriate for the the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Session Judge in Appeal".
The revisionist neither having any right, title or interest of any CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 25 of 38 ...26/ kind nor entitled to any relief. The dispute had been created without any merits and any basis and the dispute was created by the revisionist only to harass and blackmail to respondents and recorded owners. The revisionist is neither the owner nor in actual, cultivator possession of the land in question at any point of time, hence, having no right, title or interest of any kind in the land in question. The scope of the revision petition is only to see legality, correctness and propriety of order of the issue of process. It is, therefore, prayed that the revision petition may be dismissed with exemplary costs in the interest of justice.
9. Sh. Girish Giri, ld Addl. PP for the State / respondent No.1 has also submitted that the revision petition is liable to be dismissed being devoid of any merits as there is no illegality or impropriety has been committed by the ld. SDM by passing the impugned order.
10. I have heard ld. Counsel for the parties and perused the material on record carefully. The revisionists have also filed the written submissions alongwith following case laws :
i) Lophinoris Shangpling & Ors. Vs. Hamboy Shullal & Anr. (2001) Cr.L.J. 2943.
ii) Jagdish Gandhi @ Anr. Vs. State & Anr. (2008)(4) JCC 2684.
iii) A.K. Moni & Ors. Vs. State of Kerala & Ors. (2006) CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 26 of 38 ...27/ (3)RCR (Criminal).
iv) Amresh Tiwari Vs. Lalta Prasad Dubey & Anr. MANU / SC / 0265 / 2000.
v) Ashok Kumar Vs. State of Uttrakhand SLP Criminal No.3932/2012.
vi) Mahar Jahan & Ors. Vs. State of Delhi & Ors. (2006) (2) RCR (Criminal).
vii) Ranbir Singh Vs. Dalbir Singh, AIR 2002 SC 1500.
viii) Vibhu Mohanti Vs. UOI & Ors. AIR 2002 SC 1503.
ix) Ram Sumer Puri Mahant Vs. State of UP & Anr. (1985) (1) SCC 427.
x) Virender Kumar Vs. State of UP & Ors. 2003 Cr.L.J. 2709.
xi) Mohd. Shafiuddin Vs. State of AP & Ors. 2007(1) RCR (Criminal).
xii) G.J. Packaging Pvt. Ltd. Vs. SS Sales & Anr. 2006 (2) RCR (Criminal).
xiii) Mahendra Kumar Vs. Armstrong & Anr. 2005(3) RCR (Criminal) 371.
xiv) Y. Vijayalakshmi Vs. Manickan Nayayanan 2005 (3) RCR (Criminal) 693.
xv) Harprasad & Anr. Vs. Badri Prasad 2005 (1) RCR (Criminal) 901.
xvi) Inderpal Singh Vs. State & Anr. 2012 (6) LRC 287 (DEL).
xvii) Ganesha Vs. Sharanappa & Anr., MANU/SC/1185/2013 xviii) Rajesh Dubey Vs. State & Ors., MANU/DE/3221/2013.
Ld. Counsel for the respondents has also relied upon the following case laws :
i) AIR 1999 Supreme Court 981 in case entitled as State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri.
CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 27 of 38 ...28/
ii) 2004 Crl.L.J. 1693 in case entitled as T. Gurumurthy Vs. The State.
iii) 2006 Crl.L.J. 1981 in case entitled as Shruti Enterprises Ltd. Vs. State of Bihar & Ors.
iv) 1999 Crl.L.J. 2296 in case entitled as Jugal Kishore Vs. Roshan Lal.
v) Venkatappa Vs. Usha Rani & Ors., MANU/ KA/8042 / 2006.
vi) Smt. Zaitoon Vs. State of Uttar Pradesh & Anr., MANU / UP / 0582 / 1987.
vii) AIR 2012, Supreme Court 206 in case entitled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.
viii) AIR 1961 Supreme Court 1747 (V 48 C 325) in case entitled as Ram Saran Lall and Ors. Vs. Mst. Domini Kuer & Ors.
ix) AIR 2003 Delhi, 120 in case entitled as G. Ram Vs. Delhi Development Authority.
x) Sajana Granites rep. by its Parner, P. Jayaramireddy, Pulivendra(V), Tada(M) & Ors. Vs. Mandava Rambabu, MANU / AP / 0772 / 1996.
and I have perused the same also.
11. After hearing arguments and on the perusal of the material on the record this court is of the considered opinion that the present revision petition is liable to be dismissed on the following counts :
The scope of Section 145 Cr.P.C. is only to the extent to see the fact of actual possession without going into the title. The party No.1 / CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 28 of 38 ...29/ respondents No.2 to 4 has filed the Khasra Girdawari and Khatoni of the demised land and the party No.2 / revisionists never objected that Khatoni or Khasra Girdawari filed by the party No.1 / respondents No.2 to 4 are manipulated or forged documents. Sh. Hari Om, Halqa Patwari, village Hiranki has submitted that these records are maintained as per the procedure and these are the Nakal of the original record. The party No.1 / respondents No.2 to 4 have brought on record the Khatoni of the year 200304 as Ex. P1/3 and Khasra Girdawaries as Ex. P1/18 to Ex. P1/29. There is nothing to suggest that the revenue staff has not prepared the Khasra Girdawari of the land or that revenue staff prepared the record of cultivatory possession of the land wrongly. It is also not suggested that the revenue records are not maintained as per the actual site. The party No.2 / revisionists have not filed any litigation or proceedings for not recording their names in the revenue record. The party No.2 / revisionists have lay their claim on "Kachi Bahi" and has submitted that these Kachi Bahi were allegedly maintained by them regarding the sale of products, expenses and earning etc. However, entries made in Kachi Bahi do not reveal any Khasra number, weight or quantity etc. The said Kachi Bahi produced by the petitioners are from the year 1989 to 2001 only and thereafter, no Kachi Bahi was filed. The Kachi Bahi does not bear any Khasra number, rate, market value and CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 29 of 38 ...30/ receipt of competent authority. The Kachi Bahi has no authenticity or legality in the eyes of law. The party No.2 / revisionists have also lay their claim and filed the photographs Ex. P1 (collectively). The party No.2 / revisionists have admitted that the said photographs dated 21.10.2008 were not provided to any police authorities as well as not filed in the proceedings pending since 2008. The Kachi Bahi, as allegedly maintained by the second party / revisionists has mentioned the expenditure and earning from the products sold out in the open market.
In the absence of any receipt of the agent of market committee or in the absence of Khasra number, weight or quantity and other detail etc. the Kachi Bahi cannot be accepted as a legal proof of the cultivation of the land in question. The Kachi Bahi has also not been proved by any independent witness or any commission agent etc. The photographs showing the agricultural land also cannot be treated as a valid evidence to prove the possession of land. The photographs of the agricultural land cannot be considered to be the conclusive proof of possession. The party No.2 / revisionists have admitted that possession of the land never entered in the revenue record and they have also not filed any appeal for any entry in the revenue record. The party No.2 / revisionists stated to have filed a petition U/s 85 of DLR Act for Bhumidari right regarding the land in question but the copy of the said petition was not filed. The possession of the agricultural land cannot be decided on the basis of inquiry report of CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 30 of 38 ...31/ the police. The party No.2 / revisionists could not prove their submission to the effect that the father of the revisionists has contributed a sum of Rs.2 lacs for the purchase of the demised land and it was agreed that the first party / respondents No.2 to 4 will return the money or will get the 2 acres of land mutated in the name of the second party / revisionists. The photographs of the land and the Kachi Bahi are not the convincing evidence to prove the possession over the demised land.
12. Rather the first party / respondents No.2 to 4 have proved that they are in possession of the land since 198687 to 201213. Khantoni and Khasra Girdawari are on the record and there is nothing to suggest that the Khasra Girdawari as produced by the first party / respondents No.2 to 4 are forged or manipulated or there is nothing to suggest on record on behalf of the party No.2 / revisionists that they have filed any appeal etc. against recording of the Khasra Girdawari in the names of the party No.1 / respondents No.2 to 4. In the proceedings U/s 145 Cr.P.C. only the possession is to be seen and the ownership of the demised land is not to be seen. In criminal proceedings, possession of the land by any person is to be protected and the title is not to be seen as the ownership / title of the properties are to be decided by the civil courts only.
Hence, the ld. SDM has rightly passed the impugned order CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 31 of 38 ...32/ after taking into consideration the claims of the parties, evidence produced by the respective parties including other material placed on record and on the submissions made on behalf of the parties.
13. The submission made on behalf of the second party / revisionists that the ld. SDM should not have decided the Kalandra after delay of about 5 years as there is no apprehension of breach of peace, is not convincing to this court as the parties were litigating by pursuing their cases by leading evidence, appearing before the ld. SDM and putting their claim, means that the dispute between the parties over the possession of the demised land persists and there is every apprehension of breach of peace. Hence, the ld. SDM has rightly decided the matter. The submission made on behalf of the second party / revisionists that the concerned staff of the office of ld. SDM has deliberately destroyed the file and the file was to be reconstructed and no action, if any, has been initiated against the erring staff, is an administrative matter but since the file has been reconstructed and the matter was decided, this court is not required to give any finding regarding the misplacement of the file at the relevant time. The submission made on behalf of the revisionists that the ld. SDM should not have decided this matter as the revisionists have already filed a civil suit for permanent injunction praying for restraining the defendants / respondents No.2 to 4 from dispossessing the CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 32 of 38 ...33/ petitioners / revisionists from the demised land except by due process of law, is also not convincing as it is a settled law that mere pendency of the civil suit would not deprive the jurisdiction of the Magistrate to take action U/s 145 of the Cr.P.C. The ld. SDM has fortified his order by citing case law that "Mere pendency of the civil suit and passing of injunction order in that case is not bar to the initiation of proceeding U/s
145. Where civil suit is filed after the initiation of proceeding U/s 145, that would not oust the jurisdiction of court to proceed with proceeding U/s 145 Cr.P.C. (AIJ 93 Ahmed Fazili Vs. Ashid Ahmed 2003 CrLJ 1133 (J & K) & Hakim Din Vs. Chatroo 1995 CrLJ 3080 J & K)".
14. Even the commentary filed U/s 145 of the Cr.P.C. at page 487, also mandate that :
"80. Pendency of suit - overriding power of Magistrate to maintain peace The jurisdiction of the Magistrate under Sections 145 & 146 to maintain peace will prevail over the orders of the Civil Court except where (1) the determination of rights by the Civil Court has become final, or, (2) the Civil Court has appointed a receiver under S. 146(2).
The requirements of peace are paramount the orders of the Civil Court notwithstanding. The pendency of the CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 33 of 38 ...34/ civil suit in respect of the same property does not bar proceedings U/s 145 Cr.P.C."
15. Even, further, the case law filed on behalf of the revisionists namely Amresh Tiwari Vs. Lalta Prasad Dubey & Anr., MANU/SC/0265/2000, the Hon'ble Supreme Court of India has categorically ruled that :
"We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie.
It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court, the proceedings under Section 145 Cr.P.C., should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be biding on the Magistrate"
Perusal of the copies of the documents filed on behalf of the revisionists reveal that the revisionists have filed a civil suit for permanent injunction simplicitor in which the revisionists have prayed CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 34 of 38 ...35/ that the defendants i.e. the respondents No.2 to 4 herein may be restrained from dispossessing the plaintiffs / revisionists from the suit land without due process of law only. But the Hon'ble Supreme Court of India (Supra) has categorically ruled that "The proceedings U/s 145 Cr.P.C. should not be allowed to continue only in cases where civil suit for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court" but here in this case the proceeding pending between the parties is only a suit for permanent injunction simplicitor to the effect that they be not dispossessed except by due process of law only. Hence, the ld. SDM has rightly proceeded U/s 145 of Cr.P.C. as there was every likelihood of breach of peace, as is eminent from the Kalandra U/s 107/150 Cr.P.C. of P.S. Alipur. The impugned proceeding of the ld. SDM in this case is, of course, a due process of law only.
16. The revisionists have submitted that despite the statusquo order dated 30.01.2009 the respondents have indulged in illegal sale and purchase of the land in question as the respondents on 03.05.2013, have procured and fabricated the Sale Deed in the name of vendee after forging the contents relating to transfer of possession, pending litigation and CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 35 of 38 ...36/ without NOC. On the contrary, it has been submitted on behalf of the respondents No.2 to 4 that the transactions of the nature of GPA, sales or SA / GPA / Will transfers do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The courts will not treat such transactions complete or as conveyances as they neither convey title nor create any interest in an immovable property. The transfer of immovable property can only be effected by executing a registered document. The demised property have been sold in this case after taking due NOC vide order dated 18.12.2013 and now presently the land stands mutated in the name of M/s Linnet Creations Pvt. Ltd. So far as the submissions of the parties regarding the sale of the property is concerned, this court is not competent to give its findings on this aspect as the matter under challenge before this court is only the order dated 12.12.2013 (09.12.2013) passed by the court of Sh. Rajnish Kumar Singh, ld. SDM Alipur, Naya Bans, Delhi, between the parties i.e. State Vs. Subhash Aggarwal & Ors. (First Party) and Sh. Pradeep Kumar Saini & Ors. (Second Party) only. The parties may raise their grievances, if any, regarding the sale of the demised property before the appropriate forum or the parties may file appropriate proceeding before the appropriate forum.
17. An application U/s 391 of Cr.P.C. on behalf of the applicants / CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 36 of 38 ...37/ revisionists for taking the additional documents on record while deciding the main petition, is already on record but the same cannot be looked into as the proceeding before this court is not an appeal as the proceeding before this court is revision only. The scope of revision is very limited and while deciding the revision petition, the court has to satisfy itself as to the correctness, legality and propriety of finding only and not to re appreciate the evidence. Hence, the additional documents cannot be looked into at this stage.
18. I have highest regard for the case law cited on behalf of the revisionists but the same are not favourable to them as the same have been pronounced in different context.
19. Under the aforesaid discussion, this court is of the considered opinion that the ld. SDM court has passed a speaking and reasoned order and has arrived at just decision seeing the facts, circumstances, evidence and material on the record. This court has not found any incorrectness, illegality or impropriety of any finding in the impugned order dated 12.12.2013 (09.12.2013) passed by Sh. Rajnish Kumar Singh, ld. SDM Alipur, Naya Bans, Delhi. Consequently, the present revision petition is liable to be dismissed and the same is dismissed. A copy of this CR No. 08/14 Pradeep Kumar Saini etc. Vs. State & Ors. Page No. 37 of 38 ...38/ order alongwith the ld. Trial Court Record be sent back to the ld. Trial Court for information and record.
20. The revision petition file be consigned to Record Room.
Announced in open court ( R. B. SINGH )
Dated: 30.04.2015 Addl. Sessions Judge02(North)
Rohini Courts : Delhi/ 30.04.2015
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