Delhi District Court
Sarfaraz Ali vs State Of M.P. & Ors 1988 Air Sc 1973 on 5 August, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH DISTRICT, ROHINI,
DELHI
Crl. Revision no.121/2021 (DLNTO110086192021)
Sarfaraz Ali
S/o Sh. Sabir Ali
R/o Khasra No.1326 & 1331 Min,
Village Qadipur TehsilAlipur
District North, Delhi 110036
Mobile No. 9811543447
.....Revisionist/Petitioner
V.
1. State (NCT of Delhi)
Through Revenue Assistant/
SDM (Alipur)
DM/DC Office Complex
G.T Karnal Road, Alipur
Delhi110036
2. Dilshad Khan
S/o Mohd. Hanif
R/o H.No. 135, Shiv Kunj
Sant Nagar, Burari
Delhi110084
Mobile No. 9810171849 ....Respondents.
Date of Institution : 22.11.2021
Date of Reserving the Order : 19.07.2022
Order Pronounced on : 05.08.2022
Page 1/15
ORDER
1. This is a Revision Petition preferred by the Petitioner/Revisionist namely Sarfaraz Ali herein ( Second Party before the Ld. Revenue Assistant/SDM) against the impugned order dated 14.10.2021 passed by the Revenue Assistant/ SubDivisional Magistrate (SDM), Alipur, in case No. 1748/SDM/ALP/2019 Titled as 'State V. Dilshad Khan/Sarfaraz' relating to Kalandra under Section 145 Cr.P.C whereby the proceedings under Section 145 of Cr.P.C/Kalrandra submitted by the SHO of P.S Swaroop Nagar in respect of piece of land measuring 3000 square yards bearing Khasra Nos. 1326 and 1331, Kadipur Vihar, Delhi (hereinafter referred to as 'plots/portion of land' in question), been decided in favour of Respondent no.2 namely Dilshad Khan to be in possession. (First Party before the Ld. Revenue Assistant/SDM)
2. The facts as pleaded in brief are that the proceedings under Section 154 Cr.P.C ( Kalandra) were submitted by the SHO PS Swaroop Nagar, Delhi with Revenue Assistant/SDM Alipur ,Delhi by pleading that respondent No.2 herein/first party and petitioner herein/second party are claiming ownership rights upon the piece of land measuring 3000 square yards bearing Khasra Nos. 1326 and 1331, Kadipur Vihar, Delhi and there was apprehension of breach of peace in the area due to the said dispute . 2.1 It is further submitted that respondent herein/first party claimed that he had purchased three pieces of land admeasuring 1000 square yards (60' x 150'), 201 square yards (31.6' x 60') and 251 square yards, all comprised in khasra numbers 1326 and 1331, Village Kadipur known as Kadi Vihar, Delhi from Jugal Kishore, Sarfaraz Ali (revisionist herein) and Mohud Jahir through title documents dated 03.02.2014. Respondent no. 2 herein/first party further claimed that he also purchased another piece Page 2/15 of land measuring 1576 square yards (60' x 236.4') I khasra no. 1326 and 133, Village Kadi Pur known as Kadi Vihar from sh. Jugal Kishore, Jugal Kishore, Sarfaraz Ali (revisionist herein) and Mohd Jahir through title documents dated 15.06.2015. Accordingly, respondent herein/first party became the actual owner and in possession of the land total measuring 3037 square yards. On execution of the title documents, petitioner herein/second party and his associates handed over the physical possession of the 'plots/portion of land' to respondent no. 2 herein/first party vide possession letter dated 03.02.2014 and 15.06.2015 respectively.
2.2 It is further alleged in kalandra that petitioner herein/second party and his associates tried many times to interfere in physical possession of the respondent herein/first party. Accordingly, FIR No. 157/2018 and 252/2019 at P.S Swaroop Nagar, was lodged against the petitioner herein/second party and his associates. 2.3 It is further pleaded in the petition that petitioner herein/second party namely Sarfaraj filed complaint before Vigilance Department of Delhi against respondent no. 2 herein/first party namely Dilshad Khan. After the inquiry, it was concluded that petitioner herein/second party had sold the land in question of Khasra No.1326 & 1331 to respondent herein/first party through customary documents. The petitioner herein/second party never denied having transferred/executed the customary documents in favour of respondent no. 2herein/first party. Further, Hon'ble High Court vide its order dated 14.09.2018 observed that Jugal Kishore and Mohd. Jahir had sold the property to respondent herein/first party Dilshad Khan and the petitioner herein/second party never denied execution of the documents. The petitioner had filed a suit before Civil Court in respect of the customary documents which was dismissed by Civil Court vide order dated 22.02.2020 and regular appeal no. 6/2020 is pending in the court of Ld SCJ ( North ) Rohini.
Page 3/152.4 It is claimed by the petitioner herein/second party that he is the coowner and in possession of land measuring 1 bigha and 5 biswani out of khasra No.1331 min (Norht East) situated in the revenue estate of village Quadipur, Delhi, Colony known as Swaroop Vihar, vide sale deed dated 12.06.2013. It is further claimed by petitioner herein/second party that he is also the coowner and in possession of land measuring 3 bighas 18 biswas and 10 biswani out of khasra no. 1326 situated in village Quadipur, Delhi known as Swaroop Vihar, vide registered Sale Deed dated 18.07.2013. The mutation in favour of second party/petitioner herein and other coowners were sanctioned with regard to aforesaid land in the revenue record in the year,2013 and petitioner herein/second party constructed one room and is also running a nursery under the name and style of Malik Nursery on the said land. It is further stated that respondent herein/first party is working as property dealer and the petitioner herein/second party had purchased the said pieces of land through first party wherein first is also one of the witnesses. It is reiterated that the respondent herein/first party and others are neither the owners nor in possession of land measuring 3000 square yards out of khasra no. 13261331. The petitioner herein/second party did not sell the said land to respondent herein/first party and the alleged documents i.e GPA, Agreement to Sell, Possession Letter, Affidavit, etc do not create any right, title or interest in the land in question of the respondent herein/first party. The petitoner had taken loan of rs 10 lacs by handing over original sale deed to the Respondent no.2 and also signed other document which are now being misused . The laon already stands paid off .
2.5 It is further submitted that as the civil litigation between the parties in respect of the land in question is already pending subjudice, the proceedings under Section 145 Cr.P.C is not maintainable. The petitioner has placed reliance on copy of sale deed, Page 4/15 khatoni issued in the year,2013, photographs, NDMC Challan receipt of year,2019 and 2021 and registration of firm under GST.
3. Having considered the submissions made on behalf of petitioner herein/second party as well as respondent herein/first party, it has been held by Ld. Revenue Assistant / SDM vide impugned order dated 14.10.2021 that respondent no. 2 herein/first party is in physical possession of the disputed plots/portion of land which is against the well settled psition of law . Accordingly, the Kalandra was answered in favour of respondent herein/first party.
4. Feeling aggrieved, the petitioner herein/second party has challenged the impugned order on the following grounds:
(I) The Ld. SDM/Revenue Assistant failed to appreciate that the factum of possession was never referred in the Kalandra and despite that, the Ld. SDM/Revenue Assistant proceeded to adjudicate the same. Further, The Ld. SDM/Revenue Assistant failed to to appreciate that there was never any apprehension for breach of piece.
(II) The Ld. SDM/Revenue Assistant failed to appreciate that the kalandra forwarded by the police in respect of the pieces of land in question was not maintainable maintainable before the The Ld. SDM/Revenue Assistant as he had no jurisdiction to decide the factum of ownership of any party.Page 5/15
(III) The Ld. SDM/Revenue Assistant further failed to appreciate that a Regular Civil Appeal No. 6/2020 titled Sarfaraz Ali V. Dilshad Khan is pending before the Ld. CivilCumRent Controller, Rohini Courts (North) which pertains to the controversy regarding land in question and as per the settled proposition of law, the Ld. SDM/Revenue Assistant had no jurisdiction to proceed in the matter referred in the Kalandra u/s 145 CrPC . In this regard, reliance has been placed on judgment of Hon'ble Surpeme Court in case titled Jhummamal Alias Devendas Vs. State of M.P. & Ors 1988 AIR SC 1973 (IV) The Ld. SDM/Revenue Assistant further failed to appreciate that respondent no.2/First Party and others are neither the owners nor they are in possession of pieces of land in question. The petitioner or co owners never sold the same or executed any sale documents in favour of any person. The alleged unregistered documents dated 03.02.2014 and 15.05.2015 do not create any right, title or interest in favour of respondent no.2 and others. In this regard, reliance has been placed on judgment of Hon'ble SC in case titled Suraj Lamp & Industries V. State of Haryana & Anr. (2012) 1 SCC 656 (V) Ld. SDM/Revenue Assistant erred in placing reliance on judgments viz; Ramesh Chand V. Suresh Chand & Anr. 188 (2012) DLT 538, Hardip Kaur V. Kailash & Anr., 193 (2012) DLT 168 and Vikas Wadhwa V. Pradeep Kumar RFA No.786/2017 dated 19.12.2018.
The said judgments are not applicable to the facts of the present case. On the contrary, Ld. SDM/Revenue Assistant failed to take notice of the Page 6/15 judgment relied upon by the petitioner herein of Hon'ble High Court of Delhi in case titled Rakha Gupta V. Ashok Kumar & Anr. RFA No. 279/2018. The alleged documents of the respondent no.2 have been executed on 03.02.2014 and 15.06.2015 and the same cannot be taken into consideration for determination of possession of the aforesaid pieces of land.
(VI) The Ld. SDM/Revenue Assistant failed to appreciate the settled law when a document is void abinitio, a decree for setting aside the same would not be necessary as the same is nonest in the eyes of law.
(VII) The Ld. SDM/Revenue Assistant wrongly appreciated the order dated 14.09.2018 passed by Hon'ble High Court in bail application no.1231/2018 and also placed wrong reliance upon statement recorded in the inquiry report before the Vigilance Branch and the same cannot be considered for the purposes of deciding actual and physical possession of the said property .
(VIII) The Ld. SDM/Revenue Assistant failed to appreciate that the actual physical possession of the petitioner cannot be challenged by means of proceedings under Section 145 Cr.P.C.
(IX) The Ld. SDM/Revenue Assistant miserably failed to appreciate that the petitioner has constructed one room on the part of the land for living purposes and running a nursery therein under the name and style of Malik Nursery and also having electricity connection in his name.
Page 7/155. The Ld. Counsel for the petitioner, in support of the abovesaid grounds of revision, further argued that initial order dated 30.09.2019 passed by the Ld. SDM does not record any preliminary satisfaction which has to be recorded before issuing the notices to the parties concerned. It is a simplicitor cryptic order and is liable to be set aside. Further, as far as the merits of the claims of the parties with respect to the plot/property in question is concerned, it is argued that vide the impugned order, the Ld. SDM has relied upon the unregistered documents of the property in favour of respondent no.2 which is in clear violation of the judgment of Hon'ble Supreme Court in Suraj Lamp (supra) case. The registered sale deed is in favour of the petitioner herein which has been ignored. The revenue record too is in favour of the petitioner which shows that he is in settled possession of the entire property. Apart from that the legal objections, the impugned order does not decides the factum of possession by the Ld. SDM and he has simplicitor decided the entire case on the basis of issue of title and right to possession to the parties by appreciating by legality and authenticity of the property documents. The said findings of the Ld. SDM are in blatant violation of the serious of judgments of Hon'ble Constitutional Courts in this regard.
6. Lastly, it was argued that the said impugned order is also against the mandate of Hon'ble Surpeme Court in Jhummamal Alias Devendas (supra) case which categorically propounds the law on the said aspect that the jurisdiction of the Magistrate under Section 145 of Cr.P.C is ousted, the moment the civil proceedings are being pending with respect to the same subject matter before the Civil Court. In the present case, the Regular Civil Appeal No. 6/2020 titled Sarfaraz Ali V. Dilshad Khan is pending before the Court of Ld. Senior Civil Judge, Rohini, but the said judgment has neither been considered nor has been dealt with in the entire impugned order.
Page 8/157. Per contra, the Ld. Counsel for the respondent no.2 has argued that the petitioner herein is one of the vendor in the property documents dated 03.02.2014 and 15.06.2015, there are other vendors namely Jugal Kishore and Mohd. Jahangir apart from the petitioner herein who also executed the said customary documents i.e GPA, Agreement to Sell, Affidavit, Receipt, Will, Possession letter qua the property is in his favour. None of the said vendors have challenged the either the title or possession of the respondent no.2.
7.1 Secondly, it is argued on behalf of respondent no.2 that the objection taken by the petitioner herein that the said transfer documents dated 03.02.2014/15.06.2015 are in reality for some loan transaction is liable to be rejected being against the contents of the said documents and in view of the provisions of the Section 91, 92 of the Evidence Act. 7.3 Lastly, it is argued that the averments now advanced on behalf of the petitioner that the impugned order being based upon the appreciation of title documents and their legality being beyond the scope of Section 145 Cr.P.C is only an attempt to backtrack from the consent given in this regard by him before the Ld. SDM on 11.10.2021. Both the parties agreed to the decision on the basis of the document submitted by the parties which has been done by the ld SDM .
8. Ld. Addl. PP for the State/Respondent no.1 has too argued that there is no legal infirmity in the impugned order which calls for any interference.
9. I have heard Ld. Counsels for the parties and have also considered their rival contentions as well as the material placed on record.
10. The petitioner herein has challenged the impugned order dated 14.10.2021 whereby proceedings initiated before the Ld. SDM u/s 145 CrPC vide DD NO. 8A dated Page 9/15 8.08.2019 has been disposed of by deciding the issue of possession in favour of respondent no.2 herein. As far as the first ground argued on behalf of the petitioner that the initial order of issuing notices to the parties vide order dated 24.09.2019 is not relevant herein being not part of the present revision petition. Even otherwise, the said order being cryptic and not recording the initial satisfaction now cannot be raised being time barred. The court is now only concerned with validity of the impugned order dated 14.10.2021 and whether there is any illegality or legal infirmity or it being against the settled proposition of law in the present revision petition.
10.1 The Kalandra vide DD No. 8A dated 08.08.2019 under Section 145 Cr.P.C was instituted before the Ld. SDM, Alipur wherein it was submitted on bhalf of SHO PS Swaroop Nagar that there is a property dispute concerning piece of land measuring 3000 square yards bearing Khasra Nos. 1326 and 1331, Kadipur Vihar, Delhi. Itwas further alleged that due to the said property dispute , both the parties have already got registered FIR No. 157/2018 and 252/2019 at P.S Swaroop Nagar and so there was apprehension of breach of piece and accordingly, the matter was referred through Kalandra under Section 145 Cr.P.C
11. Before discussing the merits of the case in hand, the scope of power under Section 145 Cr.P.C needs to be appreciated. Section 145(4) deals with the manner in which the said power has to be exercised by Ld. SDM and the same is reproduced hereunder:
145. Procedure where dispute concerning land or water is likely to cause breach of peace (1)................................
(2)........................................................... (3).........................................................
Page 10/15(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 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 subsection (1), he may treat the party, so dispossessed as if that party had been in possession on the date of his order under subsection (1).
12. The scope of the said power has also been analysed and discussed by the Hon'ble Surpeme Court in the judgment titled Ashok Kumar V. State of Uttrakhand & Ors, Special Leave Petition (Crl.) No. 3932/2012 Dated 13.12.2012, the case relied upon by the respondent no.2, the relevant para no.7 is reproduced hereunder:
"We are of the view that the SDM has not properly appreciated the scope of Sections 145 and 146(1), Cr.P.C. The object of Section 145, Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. The scope of enquiry under Section Page 11/15 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute."
12.1 Similar view has been taken by Hon'ble Supreme Court in Ranbir Singh V. Dalbir Singh & Ors. Appeal ( Criminal) 401/2002 Dated 20.03.2002.
13. In view of the said settled position of law as is also apparent from said statutory provisions that the Ld. Magistrate while dealing with the dispute concerning land where there is apprehension it causing peace of breach, has to hear the parties, pursue their statements and take such evidence as has been produced by them so as to reach to the factual findings of party being in possession of said land on the date of subject of dispute. The said finding has to be arrived at without reference to the merits or claim of any parties to right to possess of the said disputed land. The decision on the title or validity of the documents giving right to possess to the parties cannot be gone into by the Ld. Magistrate being the domain of Civil Court. But in the case in hand, the entire Trial Court Record as well as the impugned order reflects that it has been solely passed on the basis of the title documents produced by both the parties without any reference to factum of actual physical possession. Rather, the trial court record reflects that vide order dated 16.07.2021, the Halka Patwari report concerning the factum of actual physical possession was called which was done so rightly, but the said order was never complied with for the reasons unknown. On 11.10.2021 without waiting for compliance of the said previous order of Halka Patwari report, the Ld. SDM proceeded to hear the parties on the basis of available documents on record.
Page 12/1514. The contention now advanced on behalf of respondent no.2 that petitioner herein consented to disposal of the matter on the basis of title documents submitted by parties will act as a estoppel against him is not the correct way of appreciating the proceedings in hand. It has already been observed in view of the settled proposition of law as interpreted by the various judgments of the Hon'ble Supreme Court that the said proceedings has to be decided without actual reference to the decision on title or right to possession of the parties in dispute on the basis of their title documents. Therefore, the parties, by their consent, cannot confer jurisdiction upon the Ld. SDM which the said Court does not have. Therefore, the impugned order which solely proceeds on the appreciation of the title documents and their authenticity or validity by placing reliance on various judgments as discussed is beyond the scope the quasijudicial inquiry envisaged under Section 145 of Cr.P.C.
14. The second ground taken by the petitioner herein in challenging the impugned order is the fact that the civil proceedings concerning the land in question being pending before the Ld. Civil Court and therefore, the jurisdiction of Ld. SDM/Revenue Officer getting ousted. In this regard, the reliance has been placed upon the judgment in Jhummamal Alias Devendas (supra) case. The said judgment has also been relied upon by the respondent no.2. The relevant para of the judgment is reproduced herein under:
"It will be obvious from the order of the High Court that the decision of this Court in Ram Sumer's case has been totally misunderstood. In that case, a title suit for possession and injunction in respect of certain property was instituted before the civil court. The suit was dismissed on February 28, 1981. The matter was taken up in appeal. When the appeal was pending for disposal, proceedings under sec. 145 Cr.P.C. were initiated with regard to the same property. In that proceedings, the Magistrate passed Page 13/15 a preliminary order under sec. 145(1) of the Cr.P.C. and also attached the property. The aggrieved party challenged that order in a revision petition before the Allahabad High Court. The High Court refused to interfere with that order. But this Court quashed the proceedings under sec. 145 Cr.P.C. observing :
There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2 5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to PG NO 589 invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute.
Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are therefore, satisfied that parallel proceedings should flat continue and the order of the learned Magistrate should be quashed."
15. It is, thus, apparent in case where the proceedings under Section 145 Cr.P.C are pending and the same issue concerning the same property being also either is instituted or pending before the Ld. Civil Court, the jurisdiction of the Criminal Court gets ousted. In the present case in hand, after the institution of Kalandra in the year,2019, the petitioner herein filed the suit for permanent and mandatory injunction concerning the same property by raising his rightful possession and title. The said civil suit, though was rejected by Ld Civil judge under Order 7 Rule 11 CPC vide order dated 22.02.2020 and appeal in this regard is pending before the Ld. Senior Civil Judge, Rohini vide Regular Civil Appeal No. 6/2020 titled Sarfaraz Ali V. Dilshad Khan. The said fact is also not disputed on behalf of the respondent no.2 .The ground taken by the Ld SDM in Page 14/15 discarding the said objection by holding that issue of possession is not relief sought is also misinterpretation of law laid by Hon'ble SC in Jhummamal Alias Devendas (supra) case. The petitioner has filed suit for permanent and mandatory injunction for very same land and therefore the question of factum of possession is certainly going to be decided by the ld Civil Court .In the said backdrop, when the said very issue of right to possess in the light of the title documents is being examined by the Ld. Civil Court, it was not at all appropriate for the Criminal Court to proceed under Section 145 Cr.P.C. The parties can very well approach the concerned civil court for obtaining the adinterim relief for protection of possession under Order 39 rule 1 and 2 CPC which is the issue decided by the Ld SDM vide impugned order .
16. In the light of abovediscussed reasons and observations, I am of the considered opinion that the impugned order dated 14.10.2021 suffers from legal infirmity and procedural irregularity which is liable to be set aside. Accordingly, the proceedings conducted and findings given by Ld. SDM/Revenue Officer vide impugned judgment dated 14.10.2021 and Kalandra are hereby quashed/set aside.
It is clarified that nothing has been observed herein as to the rights of the parties or authenticity of documents being the domain of Civil Court.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room
Announced in the Court (GAGANDEEP SINGH)
on 05.08.2022 Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts, Delhi.
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