Delhi District Court
Shrikant vs Smt. Naim Zehra on 26 February, 2022
IN THE COURT OF MS. DEEPALI SHARMA
ADDITIONAL SESSIONS JUDGE04
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
CNR No. DLET010063752021
Cr. Rev No. 80/2021
Shrikant
S/o Late Sh. Bachain Singh,
R/o 14/356, Trilokpuri,
Delhi110096
..... Petitioner
Versus
Smt. Naim Zehra
W/o Mehtab,
R/o C10, R.R.Colony,
15 Block Extension,
Trilokpuri, Delhi. ..... Respondent
Date of Institution : 28.09.2021
Date of reserving Judgment : 25.02.2022
Date of pronouncement : 26.02.2022
Appearances
For the Petitioner : Sh. Rahul Mishra, Adv.
For the Respondent : Sh. Gaurav Bhardwaj, Adv.
CR No. 80/2021 Page 1 of 11 ASJ04/KKD/Delhi
JUDGMENT
1. The present revision petition has been filed by the petitioner assailing the order dated 06.09.2021 passed by the Executive Magistrate, East, Mayur Vihar, where it was declared that the respondent is in possession of the property in issue and he was entitled to retain such possession till ousted by due course of law. The said order further strictly forbids any disturbances to her possession on 27/411, Trilolpuri, Delhi in the meantime.
2. It is stated by the petitioner/revisionist that he is the owner of the above property ad measuring 25 sq. yds. The said property was allotted to him by the DDA (JJRS) vide possession slip no. 7025 dated 17.09.1976.
3. It is stated that after construction, the petitioner gave the ground floor shop on rent to one Mr. Itefa Hussain in the year 1979 and he was residing on the first floor of the said property.
4. The tenant Mr. Itefa Husain left the premises/shop on the ground floor in the year 1995 and the petitioner put his lock on the entire property and continued to visit the property from time to time. It is stated that the petitioner used to reside on the said property but owing to some family CR No. 80/2021 Page 2 of 11 ASJ04/KKD/Delhi problems, the petitioner shifted to his native village for 34 years in the year 1995. At that time, the petitioner put his lock on the property. The photographs showing the same are annexed alongwith the revision petition. It is stated that in the month of February, 2021, the respondent in connivance with her children made forged documents like allotment letter, GPA, Ration Card, electricity and water bills, a House Tax receipt of only one year, in the year i.e. 2021, and also obtained a forged letter from local MLA and tried to break/open the lock of the said property and entered the same. The matter was reported to the police and a Kalandra was placed before the SDM, Mayur Vihar, Delhi. It is stated that notice was sent to the DDA(JJR) under section 91 Cr.P.C. to ascertain the allotment of the plot i.e. 27/411, Trilokpuri, Delhi which was replied to by the Delhi Urban Shelter Improvement Board vide letter dated 08.07.2021 which indicates that petitioner is the owner of the said property. It is urged that there was no water and electricity connection in the said property for the last 10 years. It is stated that on 23.09.2021, the respondent tried to break/open the lock to get forceful possession of the said property regarding which a call was made at 100 number by the petitioner. It is further stated that the letter purportedly issued by local MLA in favour of the respondent has been denied by the said MLA vide letter dated 13.09.2021 and he has stated that he had issued the certificate dated 24.02.2021 only for the purpose of correction of the Aadhar card. It is stated that the petitioner CR No. 80/2021 Page 3 of 11 ASJ04/KKD/Delhi has also moved an application before the concerned SHO/DCP on 15.09.2021 regarding the fake and forged documents made by the respondent and his family.
5. It is urged that order dated 06.09.2021 passed by the Executive Magistrate, East, Mayur Vihar, Delhi is based on erroneous facts as the respondent has placed on record forged ration card and other manipulated documents. It is stated that the complete chain of property documents has not been taken into consideration. It is stated that the possession of the property has remained with the petitioners, who is also the original allottee in the record of the DDA since the beginning. It is accordingly prayed that the impugned order dated 06.09.2021 be set aside and it is accordingly prayed that the status quo ante be restored as the respondents have broken the locks on the property on 23.09.2021.
6. On the other hand, it is contended by the counsel for the respondent that he had placed on record all the documents relating to the possession of the property before the Executive Magistrate on the basis of which the Executive Magistrate held that the respondent was in actual possession of the property in issue. It is stated that the respondent has the allotment slip in favour of the allottee i.e. Tehsina Khatoon issued by DDA (JJRB), the ration card in respect of the said property issued in the name of Tehsina CR No. 80/2021 Page 4 of 11 ASJ04/KKD/Delhi Khatoon, the original allottee, the election card issued in the year 1995, the ration card in the year 2005, the electricity and water bills, Aadhar Card and also a letter of request made to BSES for a new connection, property tax documents. It is stated that all the aforesaid documents clearly indicate that the respondent was in possession of the said property.
7. I have heard ld. Counsel for the parties and perused the record. The record of proceedings under setcion 145 Cr.P.C was also called from the office of the Executive Magistrate, East, Mayur Vihar, the same has also been perused.
8. As regards Section 145 Cr.P.C. the Hon'ble Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, 2004 (1) SCC 438, has made the following observations:
''...The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in in own hands by members of society. A dispute relating to any land etc. as defined in Subsection (2) of Section 145 having arisen, causing a likelihood of a breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Section 145/146 of the Code have been held to be quasicivil, quasi criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to Subsection (4) of CR No. 80/2021 Page 5 of 11 ASJ04/KKD/Delhi Section 145, and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simplicitor; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned.
11. There is a difference between a case where the subject(sic) of dispute is not attached by the Executive Magistrate u/s 146 (1) and the case where it is so attached. Under Subsection (1) of Section 145 a preliminary order taking cognizance of the dispute having been passed, the Magistrate would under Subsection (4) decide who was in possession of the dispute property on the date of the passing of the preliminary order. Consistently with such finding, a declaration by Magistrate in favour of such party would follow under Sub section (6) entitling it to retain possession over such property until evicted therefrom in due course of law. And until such eviction all disturbances in its possession shall be forbidden. If any party is found to have been forcibly or wrongfully dispossessed within two months next before the date on which the report of a police office or other information setting the Magistrate in motion was received by him or between such date and the date of order under Sub section (i), then the party dispossessed has to be fictionally treated as one in possession on the date of preliminary order under Subsection (1), The declaration of entitlement to possession under proviso to Sub section (4) read with Subsection (6) shall be made in favour of such party and the party found to have been been so dispossessed forcibly and wrongfully may also be restored into possession. The declaration having been made, it would be for the unsuccessful party to approach the competent court and Secure such order as would enable his entering into possession and evicting the party successful in proceedings u/s 145...''
9. The facts of the present case have to be viewed in the light of law discussed above. In order to show his possession, the petitioner has stated that he has put three locks on the property. It is also stated by the revisionist that in the record of DDA name of the revisionist is mentioned as the original allottee and he has placed the copy of the possession slip CR No. 80/2021 Page 6 of 11 ASJ04/KKD/Delhi dated 17.09.1976. The revisionist has also placed on record the property tax receipt dated 22.09.2019 to show that he has paid property tax for the period 20042005 to 20192020. The Voter ID card of the petitioner issued on 23.08.2019 indicating the address of the petitioner to be that of the property in issue. It is also urged that in his letter dated 13.09.2021 issued by MLA, NCT of Delhi, it has been clarified that the letter dated 24.02.2021 issued by him was only for the purposes of correction in the Aadhar Card. It is accordingly stated that the aforesaid facts clearly indicate that the revisionist was in possession of the property in issue.
10. On the other hand, the respondent has also claimed himself to be an original allottee by the DDA. She has also placed on record of the Executive Magistrate, the possession slip issued by DDA in the year 1977, ration card issued in 2005 besides various electricity and water bills, the latest of which are Delhi Jal Board Bills dated 24.03.2021, 22.5.2021, 29.11.2019, property tax receipt dated 18.01.2021, request for new connection made to BSES dated 11.02.2021, besides other electricity and water bills spread over a period of time. The letter of the MLC, NCT of Delhi, dt. 24.02.2021 certifying that Aftab s/o Mahtab Hussain i.e. husband of respondent, was a bonafide and a permanent resident of property in issue and had been residing there for about 23 years, Aadhar Card of the respondent reflecting the address in issue, issued on CR No. 80/2021 Page 7 of 11 ASJ04/KKD/Delhi 30.01.2021.
11. In this regard it is relevant to note that both the parties have placed on record the possession slip issued in their favour in the year 1976 & 1977 respectively. However, issue before this court is regarding actual possession of the property and not to adjudicate upon the title of the property in the present revision petition. Hence, the said documents and the title to the property would not have any bearing on the aspect of actual possession of the property in issue. It is to be noted that while on one hand the respondent has placed numerous electricity and water bills spread over a period of time, on the other hand no such document evidencing actual possession and occupation of the property have been placed on record by the petitioner. The contention of the revisionist that the respondent has relied upon fake and fabricated documents is unsubstantiated and the present revision petition is not dealing with the said issue. Another document relied upon by petitioner is a bank passbook, date of issuance of which is 23.05.2019, however, the same can hardly be stated to be an evidence of possession of the property in absence of any other documents.
12. It is also urged by the revisionist that the respondent had admitted in the proceedings before the Executive Magistrate that there was a lock of CR No. 80/2021 Page 8 of 11 ASJ04/KKD/Delhi the revisionist on the said property and that the respondent had requested for release of the furniture, goods etc., during those proceedings which fact is recorded in the order of the SDM dated 06.09.2021, meaning thereby that the lock belonged to the revisionist, who was thus in possession of the property. In this regard, it is also relevant to note that the revisionist has not denied the fact that the goods of the respondent were lying in the said property. Possession has to be seen with reference to a period of two months next before the date on which the report of the police officer was received by the Executive Magistrate. In the present case the factum of the articles of the respondent being present in the property in issue remains undisputed and infact the kalandara bearing DD No. 79 A dated 18.02.2021 was recorded upon a PCR call being made by Aftab Hussain s/o Mehtab Hussain as the petitioner had put his locks on the subject property and therefore it cannot be urged that the petitioner was always in possession of the property including period of two months next before the matter being brought before the Executive Magistrate.
13. The revisionist has also stated that in the letter dated 13.09.2021 issued by the MLA, NCT of Delhi, the MLA has clarified that he had issued the said letter dated 24.02.2021 (indicating that the son of the petitioner was a permanent resident in the property) only for correction in the Aadhar card. The said letter of the MLA dt. 13.09.2021 has been CR No. 80/2021 Page 9 of 11 ASJ04/KKD/Delhi annexed by the petitioner alongwith the revision petition itself.
14. It is pertinent to note that the said letter dated 13.09.2021 records that the previous letter dated 24.02.2021 was not a proof of ownership of the property and was solely issued for correction in the Aadhar card as the applicant (son of the respondent) lived at the said address and the MLA knew him. The said letter further records that any claim of ownership on property at address 27/411, Trilokpuri, Delhi, shall be scrutinized by the concerned authority and will have no bearing on the claim of ownership of the property. The said letter dated 13.09.2021 which has been placed on record by the revisionist, clearly mentions that the applicant i.e. son of the respondent, lived at the address and he knew him, thereby reiterating as mentioned in the initial letter dated 24.02.2021 that he was residing in the said property. The fact that the said letter dated 13.09.2021 additionally records that the previous certificate dated 24.02.2021 was not a proof of ownership is inconsequential for the purposes of the present petition which is not dealing with the issue of ownership of the subject property.
15. In view of the above discussion, it is held that there is no infirmity in the impugned order dated 06.09.2021 warranting exercise of revisional jurisdiction by this court and hence, the present revision petition is dismissed.
CR No. 80/2021 Page 10 of 11 ASJ04/KKD/Delhi
16. File of the office of the Executive Magistrate, Mayur Vihar Sub Division, Delhi, be sent back alongwith copy of this order.
17. File be consigned to Record Room.
order
DEEPALI Digitally signed by
DEEPALI SHARMA
SHARMA Date: 2022.02.26
17:28:19 +0530
(Pronounced in the open Court (Deepali Sharma)
on 26.02.2022) Additional Sessions Judge04
East District, Court No. 10,
Karkardooma Courts, Delhi
CR No. 80/2021 Page 11 of 11 ASJ04/KKD/Delhi