Delhi District Court
Devender Dhama @ Devender Singh vs State Through Sdm (Preet Vihar) on 10 February, 2023
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03 (EAST): KARKARDOOMA COURTS: DELHI.
Criminal Revision No. 179/2022
Devender Dhama @ Devender Singh
W/o Late Sh. Raj Singh
R/o 24-A, Shiv Puri Extension,
Krishna Nagar, Delhi 110051. ........Petitioner/
Revisionist
Vs.
1. State Through SDM (Preet Vihar)
L.M. Bandh, Shastri Nagar, Delhi - 31.
2. Ajay Wahi
S/o Late Sh. Trilok Chand Wahi
R/o H.No. 396, Ground Floor,
Ashok Gali, Ram Nagar,
Krishna Nagar, Delhi-110051.
3. Smt. Sunita
4. Smt. Anita
5. Smt. Seema
6. Smt. Sushma
All D/o Late Sh. Trilok Chand Wahi
R/o H. No. 396, Ground Floor,
Ashok Gali, Ram Nagar,
Krishna Nagar, Delhi-110051.
7. Anuj Rana
S/o Sh. Gyanender
8. Kapil Rana
S/o Sant Ram
Both R/o 6/8 Village Ghondli,
Krishna Nagar, Delhi-110051. ........Respondents
Arising out of order dated 27.08.2022
Passed in Case No. SDM/PV/SEC. 145 Cr.P.C./2022/8351-55
Crl. Rev. No. 179/2022 Devender Dhama Vs. State & Ors. Page - 1 of 15
titled as Ajay Wahi & Ors. Vs. Devender Singh @ Pappu
Date of Institution : 13.09.2022
Order Reserved on : 17.01.2023
Date of Order : 10.02.2023
::- O R D E R -::
1. By way of this order, this Court shall decide the Revision
Petition filed under Section 397 r/w Section 399 of Code
of Criminal Procedure, 1973 (in short "CrPC")
challenging the order dated 27.08.2022, whereby, ld.
SDM Preet Vihar, Delhi allowed the proceedings under
Section 145 CrPC and it was directed that the second
party (i.e. petitioner) shall restore the possession of the
subject property to the first party (i.e. respondents No.2
to 6) within 10 days from the said order and if, the
second party fails to hand-over the possession of the
subject property to the first party within the stipulated
period, the SHO, Krishna Nagar, Delhi was directed to
get the property vacated from the second party and hand-
over the possession to the first party and it was also
directed to Tehsildar (Preet Vihar) to extend all assistance
to SHO.
2. The order has been challenged inter alia on the following
grounds, which are more or less the arguments of the
revisionist/ petitioner:-
(a) Ld. SDM failed to appreciate that respondent no.2
himself admitted the possession of the petitioner over
the said property.
(b) Ld. SDM has not considered and even not mentioned
in the impugned order the submissions and relevant
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case laws pertaining to applicability of Section-145
CrPC, which were relied by the petitioners.
(c) Ld. SDM has wrongly exercised his powers and went
beyond his jurisdiction by concluding that petitioner
is not the owner of the said property. It is established
law that if, there is any question of title, then, it is
only a Civil Court that can decide the same.
(d) The civil proceedings were pending between the
parties before the Ld. Addl. Senior Civil Judge at
Karkardooma Courts and if, orders are being passed
by Civil Court therein and if, there was threat to
breach of peace, then, proceedings would be initiated
under Section-107 CrPC and not under Section-145
CrPC.
(e) The matter involves the issue of possession and
ownership of the said property, then only Civil Court
has the jurisdiction to adjudicate the matter and ld.
SDM has no power to decide the ownership of the
said property.
(f) It is well settled law that Criminal Court cannot
invoke the jurisdiction when the question of
possession is being examined by the Civil Court and
parties are in a position to approach the Civil Court
for orders, such as, injunction etc.
(g) Ld. SDM has blatantly misused his powers and gone
beyond his jurisdiction to give benefit to respondents
nos.2 to 6.
(h) After passing of the impugned order dated
27.08.2022, copy of the order was sent to the
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petitioner only on 06.09.2022 and the same was
received by the petitioner on 07.09.2022. Ld. SDM
made an error by sending copy of the order dated
27.08.2022 on the last date with the motive that the
petitioner would not be able to approach this Court.
(i) No notice was issued to the petitioner immediately
after passing of the order dated 27.08.2022 to vacate
the property within the prescribed period.
(j) Ld. SDM has failed to look into the provision of
Sections 145(1), 145(4) and 145(6) CrPC.
(k) The Petitioner/revisionist has relied upon the
following Judgments in support of the aforesaid
arguments:-
(1) Dalbir Singh Vs. State (NCT of Delhi) & Ors.
Passed by Hon'ble High Court of Delhi in Crl.
Revision No. 540/2000 decided on 16.07.2001;
(2) Ranbir Singh Vs. Dalbir Singh & Ors.
MANU/SC/0210/2002;
(3) Ram Sumer Puri Mahant Vs. State of U.P. &
Ors. MANU/SC/0108/1984;
(4) Murari Mirchandani Vs. State & Ors. Passed in
Crl. M.C. 2611/2021 decided on 02.06.2022;
(5) Jai Veer Singh & Ors. Vs. State of U.P. & Ors.
MANU/UP/2152/2020;
(6) Jitendra Kumar Vs. Anil Kumar & Ors.
MANU/UP/1344/2022;
(7) Ganga Bux Singh Vs. Sukhdin AIR 1959 All
141 and
(8) Ashok Kumar Vs. State of Uttarakhand (2013)
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3 SCC 366.
3. Ld. counsel for the petitioner has also vehemently argued
that the aforesaid judgments have not been followed by
ld. SDM and that there was no question of breach of
peace, as prescribed under Sec.-145(1) Cr.P.C. It was also
argued that in view of the aforesaid judgments, the order
is bad in law.
4. Per contra, ld. counsel for respondents nos. 2 to 6 has
assiduously argued that ld. SDM issued the notices to
both the parties and the hearings were held on
28.06.2022, 01.07.2022, 07.07.2022, 26.07.2022 and
02.08.2022 and the revisionist/petitioner, after attending
the office of SDM, filed the frivolous suit on 01.07.2022.
Ld. counsel for respondent nos. 2 to 6 has referred the
orders of ld. Addl. SCJ in order to show the conduct of
the revisionist/petitioner. It was also argued that the
intention of the revisionist was to take the shelter of the
technicalities of law and despite withdrawing the civil
case on 26.09.2022, till date, the petitioner has not
preferred to file any suit against respondents no. 2 to 6,
which shows the intention of the revisionist that the
judgment relied upon by the revisionist along with the
Revision Petition are not supporting the case of the
revisionist as those judgments themselves categorically
held that if, civil suit is pending and thereafter, parallel
proceedings cannot be initiated in respect of the same
property and in between the same parties but in the case
in hand, Kalandra under Section 145 Cr.P.C. was initiated
vide DD No. 99A, dated 06.05.2022 and the civil suit
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was filed by the revisionist only on 01.07.2022 and the
said suit was not maintainable and the same was
withdrawn by the revisionist. Ld. counsel for respondents
no. 2 to 6 has relied upon the following judgments:-
(1) Bhinka Vs. Charan Singh reported in AIR 1959 SC
960;
(2) Shakuntala Devi Vs. Chamru Mehto & Anr. AIR
2009 SC 2075 and
(3) Padhiyar Prahladji Chenaji (Deceased) Through
L.Rs Vs. Maniben Jagmalbhai (Deceased)
Through L.Rs. & Ors. 2022(2) Civil Court Cases
507 (S.C.)
5. It was also argued that in Dalbir Singh Vs. State (supra),
the Hon'ble High Court, in para no. 13, has categorically
held that if an order of civil Court is obtained after
initiation of proceedings under Section 145 of the Code
the situation is somewhat different but in case the order,
interim or final is there in favour of one of the parties
before commencement of proceedings under Section 145
of the Code then SDM has no option but to abide by it
and protect the possession of property armed with such
an order.
6. It was also argued by ld. counsel for respondents nos. 2
to 6 that the judgments relied upon by the revisionist/
petitioner are of no help and the same are not applicable
to the facts & circumstances of the present case.
7. In nutshell, case of the petitioner/revisionist before the
ld. SDM was as under:-
(a) that the father of petitioner had purchased the
property bearing no. 26A, Shiv Puri Extension,
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Krishna Nagar, Delhi from Smt. Roop Rani, W/o Sh.
Krishan Lal on 19.10.1999 by virtue of GPA,
Agreement to Sell, Will, Receipt and possession letter
- all dated 19.10.1999 and further, father of the
petitioner expired on 12.02.2013 and since then, the
petitioner and his family are in peaceful possession of
the property.
(b) The father of petitioner died intestate leaving behind
only three legal heirs i.e. the petitioner and his two
younger brothers and the two younger brothers had
executed registered Relinquishment Deed in favour of
the petitioner and therefore, he became the absolute
owner of the property.
(c) During the renovation and maintenance work in the
said property, the original chain of documents was
untraceable or misplaced and an NCR dated
02.04.2022 was also lodged.
(d) On 14.04.2022, respondents no. 2 to 6 along with
some persons came at the said property and tried to
forcibly enter the property. When the petitioner
stopped and confronted them, the respondent no.2
stated that they have purchased the said property. The
respondent nos. 2 to 6 claimed themselves to be the
owners of the said property. The petitioner thereafter
called the police. The petitioner lodged a complaint to
SHO, P.S. Krishna Nagar on 14.04.2022.
(e) The petitioner was shocked to receive the notice on
20.06.2022 under Sec. 145 CrPC from Ld. SDM,
Preet Vihar, whereby, the petitioner was directed to
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appear on 28.06.2022.
(f) The respondents nos. 7 and 8 are the sons of maternal
uncle of the petitioner and they visited regularly in the
house of petitioner and the original documents of the
said property were stolen by respondents nos. 7 and 8
from the house of petitioner with the motive to grab
the said property. Since the intention of respondents
nos. 2 to 8 was clear that they wanted to grab the said
property, the petitioner filed a suit for declaration,
permanent and mandatory injunction.
8. The case of the respondents no. 2 to 6 is as under:-
(a) The property in question originally belongs to Smt.
Roop Rani by virtue of Sale Deed dated 14.03.1966.
Smt. Roop Rani expired on 11.01.2001 leaving behind
Krishan Lal i.e. her husband as her only legal heir and
in this regard, his Surviving Membership Certificate
dated 30.06.2014 was also issued by the Executive
Magistrate.
(b) The said Shri Krishan Lal, although, sold the property
to Sh. Trilok Chand Wahi by transfer documents i.e.
GPA, Agreement to Sell, Will, Receipt - all dated
27.06.2001 to avoid any controversy after his death,
however, he remained in the property till his death i.e.
on 20.09.2016. Even, the Death Certificate reflects
address of the said property.
(c) After the death of Sh. Krishan Lal, his real brother i.e.
Sh. Trilok Chand Wahi was looking after and
managing the affairs of the above said property and
receiving the rent from the tenants.
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(d) The father of respondents nos. 2 to 6 i.e. Sh. Trilok
Chand Wahi had expired on 25.09.2020. There was a
pandemic of COVID-19 and it was on alarming stage
in the entire world, therefore, the respondents nos. 2
to 6 have not visited the said property frequently, after
the death of Shri Trilok Chand Wahi.
(e) On 13.04.2022, respondents nos. 2 and 3 visited the
property in question and found that one family of the
neighborhood i.e. family of the revisionist is in illegal
possession of the above said property. Till the time of
February 2022, the tenants were paying the rent to
respondent no.2 and as per the information gathered
from the locality, it was revealed that the
petitioner/revisionist and his brothers started falsely
claiming themselves to be the owners of the above
said property and by impersonation, the rooms in the
above said property were got vacated from the tenants
in the month of March/April 2022. Thereafter,
respondent no.2 dialled 100 number and police
reached the spot and called both the parties at the
police station in this regard.
(f) Thereafter, a Kalandra under Section 145 Cr.P.C. was
prepared by police and the matter was sent to the
Court of ld. SDM on 06.05.2022. Thereafter, ld. SDM
took the cognizance and issued the summons to the
revisionist as well as the respondents nos. 2 to 6. The
SDM, after verifying all the aspects, as required under
Sec. 145 CrPC., passed the order dated 27.08.2022,
whereby, Tehsildar, Preet Vihar was directed to
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restore the possession of respondents nos. 2 to 6
within 10 days and the possession was restored to
respondents nos. 2 to 6 on 07.09.2022.
9. It is argued by Ld. Counsel for respondents nos. 2 to 6
that ld. SDM, after considering in detail, has passed the
order dated 27.08.2022. The ld. SDM has considered the
entire documents of possession of the petitioner as well
as the respondents.
10. In the suit, filed by the petitioner (i.e. plaintiff in the said
case), the perusal of order sheet of the ld. Addl. Sr. Civil
Judge reveals that on 08.07.2022, the defendants
(respondent nos.2 to 6 in the present case) had appeared
before the ld. Addl. Sr. Civil Judge and on 08.07.2022,
the parties were directed to maintain status quo as the
defendant had sought time to file the Written Statement
as the defendant had received the documents only one
day before the said date.
11. On 22.07.2022, there was a strike of lawyers and the
matter was adjourned to 30.07.2022 and the interim order
was continued. On 30.07.2022, the proxy counsel on
behalf of the plaintiff (petitioner herein) had appeared.
Written Statement was filed by the defendant. Proxy
counsel for the plaintiff sought adjournment on the
ground that the main counsel was not available. The said
adjournment was strongly opposed by Ld. counsel for the
defendant stating that the status quo order obtained by
the plaintiff i.e. the petitioner herein, was being misused
by the plaintiff. Last & final opportunity was granted to
the parties to address the arguments on the application
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under Order 39 Rules 1 & 2 CPC and the matter was
adjourned to 02.08.2022.
12. On 02.08.2022, again ld. proxy counsel for the plaintiff
had appeared and it was stated by him that the plaintiff
wishes to withdraw the suit and he had sought a pass
over for 2 p.m. At 2 p.m., since none appeared on behalf
of the plaintiff i.e. the petitioner herein, the ld. Addl. Sr.
Civil Judge in the interests of justice, has not dismissed
the suit for non-prosecution but vacated the interim order
dated 08.07.2022, whereby, the order of status quo was
passed and the matter was adjourned to 31.08.2022.
13. The perusal of order dated 26.09.2022 reveals that the
plaintiff i.e. the petitioner herein had withdrawn the suit
with the liberty granted to the plaintiff to file the
appropriate suit in accordance with law.
14. The perusal of the prayer clause reveals that one of the
reliefs, which was sought by the plaintiff i.e. petitioner
herein for declaration declaring the ownership documents
in respect of the suit property bearing no. 26A, Shiv Puri
Extension, Krishna Nagar, Delhi measuring 183.5 sq.
yds. in favour of the defendants as null and void.
15. It is admitted by the petitioner herein that thereafter, no
civil suit has been filed and no civil suit is pending till
now in any Court of law.
16. The first and foremost contention of the
revisionist/petitioner that the suit was pending and the
proceedings under Sec. 145 Cr.P.C. could not have been
continued sans merit and is hereby rejected. The
Kalandra was prepared on the basis of the complainant
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dated 14.04.2022 and the SDM initiated the proceedings
on the basis of the said Kalandra. The parties were
having knowledge of the fact that the Kalandra has
already been filed and even the SDM had given a notice
for the date of hearing of 28.06.2022 and admittedly, the
said notice was received by the petitioner/ revisionist on
20.06.2022. As per admitted case of the petitioner/
revisionist, no civil suit was filed by him till then.
17. The entire civil proceedings, which were done by the
petitioner/ revisionist, were done after the proceedings of
Section 145 Cr.P.C. and not prior thereto. The conduct of
the petitioner/ revisionist before the ld. Addl. Sr. Civil
Judge is also writ at large. Immediately after obtaining
the status quo order, the revisionist/ petitioner has tried to
seek adjournments before the said Court on one ground
or the other and the ld. Addl. Sr. Civil Judge was even
constrained to revoke the status quo order dated
08.07.2022, vide order dated 02.08.2022.
18. On 02.08.2022, when the proceedings before the ld.
SDM were continuing, the submission was made on
behalf of the plaintiff i.e. the petitioner herein that he
wants to withdraw the suit, however, when the matter
was passed over for 2 p.m., none had appeared on behalf
of the plaintiff and looking into the conduct of the
petitioner/ revisionist at 2 p.m., the status quo order was
vacated. The Ld. Addl. Sr. Civil Judge was gracious
enough not to dismiss the suit on that date. The
petitioner/revisionist himself had withdrawn the suit on
26.09.2022, however, much prior to that date, the status
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quo was already vacated and the proceedings before the
SDM were pending at that time.
19. Thereafter, admittedly, the petitioner/revisionist has not
instituted any civil proceedings. It is also strange to look
into that most of the documents i.e. the Relinquishment
Deed from the brothers and the story about the loss of
original documents as well as execution of the
Relinquishment Deed, was in the month of April, 2022.
The entire documents qua the original property remained
with respondents nos. 2 to 6 and it appears that false
story was concocted by the petitioner that first of all, the
documents were lost and thereafter, the story about
stealing of the documents by his own relatives i.e.
respondents nos.7 and 8, who have concern, whatsoever,
with the property in question.
20. The contention of respondents nos.2 to 6 that the
petitioner/revisionist has encroached upon/trespassed the
property somewhere in March/April 2022 appears to be
correct. The ld. SDM, although, came to the conclusion
that the possession of the subject property was taken
forcibly by the petitioner/revisionist sometime in 2021-
2022, however, it appears that it was done in the year
2022. The ld. SDM has opined in the impugned order
that it is established beyond any doubt that the second
party (i.e. petitioner) is not the owner of the subject
property. The ld. SDM, under the law, was not allowed to
state that whether the petitioner was not the owner of the
property and it is the prerogative of the Civil Court to
decide the title between the parties, however, it is clear
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from the record that the possession of the petitioner/
revisionist was not the legal possession from the
documents, as relied upon by respondents nos. 2 to 6
before the concerned SDM and taking advantage of the
Covid period, it appears that they have encroached upon
the property in question. The Hon'ble Supreme Court, in
suo motu petition, has excluded the period of limitation
from 15.03.2020 to 28.02.2022, thus, the arguments
regarding two months, as mentioned under Section
145(4) CrPC also does not come to the rescue of the
petitioner. Furthermore, ld. counsel has relied upon the
Judgment of Hon'ble Supreme Court in the case of
Shakuntla Devi Vs. Chamru Mehto & Anr. AIR 2009
SC 2075, wherein, it is held that Article-137 of the
Schedule, appended to the Limitation Act, is applicable
and limitation for application/petition under Section-145
CrPC is three years.
21. It is admitted position that respondents nos.2 to 6 were
already put in possession of the property in question and
presently, they are enjoying the said property.
22. The judgments, as relied upon by the
revisionist/petitioner, are not at all applicable to the facts
and circumstances of the present case and ld. SDM has
correctly passed the order as far as restoration of the
property, after invoking the provisions under Section-145
(6) Cr.P.C., as from the Kalandra, it is apparent that there
was likelihood of breach of peace between the parties
and the possession of the revisionist/petitioner apparently
appears to be illegal.
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FINAL ORDER:
23. In view of the above observations, this Court is passing
the following final order:-
ORDER
(a) The present revision petition is hereby dismissed and accordingly, the impugned order dated 27.08.2022 is hereby upheld except the observation of the ld. SDM that "...that the second party (i.e. petitioner) is not the owner of the subject property..." and only the said portion is set aside and rest of the impugned order shall remain as it is.
(b) If, the petitioner institutes any civil proceedings, then, anything observed in this order shall have no bearings/expressions on the merits of the said case.
(c) The copy of this order be placed in TCR and same be sent forthwith to the Ld. Trial Court for information. File of revision petition be consigned to record room.
Announced in the open Court on this 10th day of February, 2023.
(ARUN SUKHIJA) Addl. Sessions Judge-03 (East) Karkardooma Courts: Delhi Crl. Rev. No. 179/2022 Devender Dhama Vs. State & Ors. Page - 15 of 15