Delhi District Court
Ram Saran vs The State on 5 June, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
CR No.50/09
1. Ram Saran
S/o Late Shri Dharam Singh
2. Satpal Tanwar
3. Rampal Tanwar
4. Surenderpal Tanwar
All three sons of Shri Ram Saran, petitioner no. 1.
All R/o WZ492, Naraina Village, New Delhi110028.
.....Revisionists/Petitioners
Versus
1. The State
(Govt. of N.C.T. of Delhi)
2. Sh. Ram Kumar
3. Shri Ram Niwas
4. Shri Om Kumar
5. Shri Naresh Kumar
Respondents no. 2 to 5 S/o Shri Ram Kishan
R/o WZ307, Naraina Village, New Delhi110028.
.....Respondents.
J U D G M E N T
1. Aggrieved by the order dated 28.09.2007 passed by Ld. SDM, district West, Rajouri Garden, New Delhi u/sec 146 (1) of Cr P C thereby sealing the property of the petitioners i.e. property bearing Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 1 of pages 20 Kh. no. 261MIN. (103), Municipal no. WZT1 in Revenue Estate of Naraina, New Delhi, now known as W.H.S., Kirti Nagar, New Delhi 110015, the revisionists/petitioners have preferred the present petition on 17.10.2007 for setting aside the said impugned order dated 28.09.2007 and sought desealing of the said property and restoration of the possession of the same to the petitioners in the same condition as it was on 28.09.2007 at the time of its sealing.
2. Factual matrix of the case relevant for the purpose of disposal of the present petition (as per petitioners) are as under: The petitioners are the owners of the aforesaid property to which they have inherited from their ancestors. The father of petitioner no. 1, Late Shri Dharam Singh was the owner of the joint property bearing Kh. no. 261MIN (103), 250MIN, (219) and 244MIN (012) in the revenue estate of Village Naraina, New Delhi. Shri Dharam Singh expired in the year 1969 and the petitioners and respondents no. 2 to 5 along with their late father remained in joint ownership and possession of the aforesaid entire property. It is claimed that in the year 1984 an oral family partition took place between petitioner and respondents no. 2 to 5 along with their late father and according Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 2 of pages 20 to the said partition the property bearing Kh. no. 250MIN, (219) in the revenue estate of Village Naraina, New Delhi fell into the share of the petitioners and rest of the property went to the respondents. Since then, the petitioners and respondents no. 2 to 5 are enjoying the exclusive possession over their respective shares. It is further averred that petitioners are carrying their business of furniture in the said property as well as in their share of property bearing Kh. no. 250MIN, (219) in the revenue estate of Village Naraina, New Delhi. Similarly, the respondents were also enjoying their exclusive possession over their shares and they had constructed several small houses on their share of land and let out the same to various people and in this manner they are earning handsome rental income. It is also added that petitioners also let out 700 yds of land out of the said property to one Shri Raj Kumar who is in the possession of the said tenanted possession since 1999. However, since the price of the property has been increased many fold, so the intension of respondent became dishonest. On 25.08.2007, at around 7 pm they threatened the tenant of the petitioners namley Raj Kumar to vacate the tenanted portion. A complaint in that regard was lodged with Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 3 of pages 20 SHO, PS Kirti Nagar who called both the parties and in his presence the respondents no. 2 to 5 openly threatened the petitioners to leave the property otherwise they would be thrown out. The SHO did not react to the said threats and at that juncture, the petitioners realized that respondents no. 2 to 5 were having hand in glove with the local police. Thereafter, a civil suit for permanent injunction was filed by Shri Raj Kumar in which the respondents no. 2 to 5 and also SHO, PS Kirti Nagar were impleaded in the array of respondents. The said proceedings is still pending. In the said proceeding, Ld. Court appointed a Local Commissioner to ascertain the possession of the plaintiff over the property in dispute. On 01.09.2007, when the Ld. Local Commissioner visited the said property, the respondents no. 2 to 5 with the help of local gunda elements and police tried to take the possession of the said property forcibly but the said move was foiled by the petitioners. Then the petitioners filed a suit for declaration and permanent injunction before the Hon'ble High Court of Delhi interalia making a prayer that they be declared owner of the share of the property, which fell into their share as per oral family partition took place in the year 1984. In the said proceedings, Hon'ble High Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 4 of pages 20 Court of Delhi had directed both the parties to maintain Statusco. Apart from that, a local commissioner was also appointed by Hon'ble High Court of Delhi with the direction to visit the property to ascertain the possession of the rival party. It is claimed that after receiving the copy of the order of Hon'ble High Court of Delhi, the respondents no. 2 to 5 and Smt. Indra Wati, Addl. SHO, PS Kirti Nagar, Delhi came into action and they tried everything to dispossess the petitioners from the said property but before that the Ld. Local Commissioner came on the spot and he inspected the property on 26.09.2007 from 4 pm to around 8 pm and left the place. Then after leaving of the Local Commissioner, the Addl. SHO alongwith the other police officials of PS Kirti Nagar came on the property and arrested petitioners no. 1 and 3 and son of petitioner no. 2. While telling that an FIR bearing no. 376/2007 u/s 448/452/506/34 IPC has been registered against them. On their production before Ld. CMM/Delhi, petitioner no. 1 & 3 and son of petitioner no. 2 were released on bail. After their release, the police tried to arrest the petitioner no. 2 & 4 but they both obtained the anticipatory bail. Despite of that, the respondents continued their efforts to dispossess Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 5 of pages 20 the petitioners and in this position, the petitioners were left with no other option but to keep the property locked from inside. Again on 28.09.2007, when the petitioners were going to attend the court of Ld. SDM/Delhi in a proceeding u/s 145 Cr P C, the respondents no. 2 to 5 once again tried to enter into the property. The petitioners immediately made a call to the PCR, resultantly local police came at the spot but it instead of taking action against the respondents, took petitioner no. 1 to the police station and kept him sitting there till 5 pm. After his release, he went to the court of SDM where the photocopy of the certified copy of the order dated 25.09.2007 passed by Hon'ble High Court of Delhi was shown to Ld. SDM, who after seeing the same allowed petitioner no.1 to go back. At 6.30 pm, the petitioner no.1 came to the property where a huge police force headed by Addl. SHO and other police officials was found gathered. The Addl. SHO asked the petitioners to open the lock of the property in question but they refused as they were very afraid of such a huge police gathering. Thereafter, the Addl. SHO and other police officials cut the lock of the said property from outside with the help of a big scissor. Then, the police force forcibly entered into the property and Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 6 of pages 20 they thrown out the petitioners and their workers alongwith the personal belongings of the petitioners. The petitioners immediately sent the complaint to the Hon'ble Chief Justice of India, Hon'ble Chief Justice of Delhi High Court, Hon'ble Lt. Governor, Police Commissioner and Home Minister etc. but the police could not be stopped in bringing the respondent no.2 to 5 inside the said property and taking their photographs there. When the petitioners tried to take the photographs of the entire scene, they were beaten by the police. On 28.09.2007, the entire operation of the police lasted from from 7 pm to 9 pm and at around 9 pm the police sealed the property and copy of order dated 28.09.2007 passed by Ld. SDM u/s 146 (1) Cr.P.C was pasted on the said property. Thus, in this manner the petitioners, who are the owners in possession, were dispossessed from the property in question by the said respondents. It is alleged that Ld. SDM in utter disregard to the order passed by Hon'ble High Court of Delhi passed the order dated 28.09.2007 and acted as a puppet in the hands of respondents no. 2 to 5 and police officials of PS Kirti Nagar. It is claimed that during the visit of local commissioner to the said property on 26.09.2007 in terms of the order Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 7 of pages 20 dated 25.09.2007 passed by Hon'ble High Court of Delhi, the respondents no. 2 to 5 did not dispute the possession of the petitioner over the land in Khasra no. 250. The ill motive of the police as well as respondents no. 2 to 5 is apparent from the fact that case of trespassing was registered against the petitioners and their family members just to show that petitioners have entered into the same property same day itself. The contradiction in the stand of respondents no. 2 to 5 is also crystal clear from the fact that on the one hand in their written statement filed before Ld. Civil Judge, they denied the existence of the tenant of the petitioners in the said property and on the other hand in the FIR they admitted that the petitioners have let out half of their portion to Raj Kumar. This clearly indicates that the respondents no. 2 to 5 themselves admit that the petitioners were in possession of the said property and Ld. SDM has crossed her jurisdiction in passing the order dated 28.09.2007 without applying judicial mind and in this manner she was totally trapped under the influence of the police. The police officials have also exceeded their powers. The respondents have intentionally floated the orders passed by Hon'ble High Court of Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 8 of pages 20 Delhi despite being fully aware that their said acts amount to contempt of court. Instead of approaching the court, the respondents have opted for the different methods and illegally tried to evict the petitioners from the said property, however, the petitioners are still in settled and constructive possession of the said property. Thus, it is clear that the impugned order passed by Ld. SDM/Delhi is based on surmises and conjectures and has been passed without application of judicial mind. Ld. SDM has failed to understand that once the civil court has ceased the matter and passed an effective order, she has no jurisdiction to pass any order. In passing the impugned order, she has committed gross contempt of court. It is also alleged that when the property was sealed, the goods/furniture/wood owned by the petitioners were lying in the said sealed property and wood in a perishable product and there is every likelihood that a huge quantity of wood and furniture would be damaged due to the sealing of the property. The impugned order is also violating of the principles of natural justice as the petitioners were not given the opportunity to be heard by the Ld. SDM and the same was passed solely on the basis of police report.
Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 9 of pages 20
3. The respondents no. 2 to 5 have strongly contested the present petition by filing the reply in which it is claimed that the present revision petition is not maintainable as the same has been filed against the order of attachment passed by Ld. SDM u/s 146 (1) Cr P C which is an interlocutory order and as such the revision petition is hit by the provisions of Section 397 (2) Cr P C. Moreover, the petitioners are guilty of concealing material facts from this court. The petition is also liable to be dismissed on the ground that proceedings before Ld. SDM have not completed so far and both the parties having been directed by Ld. SDM to file their statements/ reply alongwith documentary evidence and unless a final order is passed by Ld. SDM the present petition is not maintainable. The petitioner have not portrait the correct picture before this court. The correct picture is that on the basis of kalandra u/s 145 Cr.P.C submitted by the local police before Ld. SDM, an order was passed whereby the local police of PS Kirti Nagar was directed to attach the subject matter of dispute being bearing Kh. no. 261MIN (103), situated in the revenue estate of Village Naraina, New Delhi. It is submitted that both the parties have inherited the land situated in Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 10 of pages 20 Kh. no. 261MIN (103), 250MIN, (219) and 244MIN (012) in the revenue estate of Village Naraina, New Delhi. Father of petitioner namely Shri Dharam Singh was the owner of the property who unfortunately expired in the year 1964. As both the parties were having cordial relations with each other, so they never tried to claim any partition in the aforesaid property, hence no partition have ever arrived at between both the parties either orally or in writing. The respondents were in exclusive and peaceful possession of Kh. no. 261 MIN (103) in the revenue estate of Village Naraina, New Delhi wherein they were running a fabrication as well as the repairing/ manufacturing of furniture work. It is alleged that petitioners and others, were having evil eye on the said property and therefore they have started interfering in the peaceful possession of the respondents in the subject premises. The respondents being a blood relation to the petitioners always trusted upon them but the petitioners through their associates have instituted a false and frivolous litigation against the respondents. As per the report of Local Commissioner appointed by Ld. Civil Judge/Delhi, Mr. Ram Kumar, the so called tenant of the petitioners was failed to give any proof relating to his Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 11 of pages 20 possession in the subject premises. Significantly, no objection to the report of the Local Commissioner has been filed before the court of Ld. Civil Judge till date. When the petitioners were failed in their ulterior design, they filed a suit before the Hon'ble High Court of Delhi by concealing the material facts in order to obtain a favourable order from Hon'ble High Court of Delhi. Hon'ble High Court of Delhi was pleased to direct to parties to maintain the Statusco with regard to the possession in respect of Kh. no. 261MIN (103) and 250MIN, (219) in the revenue estate of Village Naraina, New Delhi. It had also appointed a Local Commissioner for ascertaining the extent of possession of both the parties in the subject premises vide order dated 25.09.2007. It is claimed that the said order was passed in the absence of the respondents. As the petitioners were trying to dispossess the respondents from the subject premises in violation of the orders of Hon'ble High Court of Delhi, so the local police had registered an FIR bearing no. 376/07 u/s 323/448/452/506/34 IPC against them and two of the petitioners were arrested from the spot. The documents annexed and relied upon by the petitioners have been manipulated in connivance with the third party namely Raj Kumar. Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 12 of pages 20 The petitioners are rank trespassers. The respondents are in absolute physical and lawful possession of the subject premises. All the documents filed by the petitioners do not belong to the subject property. It is claimed that there was clearly an arrangement between the police and the petitioners and in pursuance to the collusive design of the petitioners with the police officials, the Kalandra was prepared by the police at the back of the respondents. The provisions of section 145 Cr.P.C. is intended to be invoked only when there is really a serious threat of breach of peace on account of dispute regarding immovable property between the different parties. The Ld. SDM has adopted the due procedure of law by giving sufficient opportunity to both the parties to established their stand by filing their respective evidence and documents. As per the provisions of section 145 r/w section 146 of Cr.P.C, SDM is empowered enough to initiate proceedings independently and she has not flouted any provisions of Cr P C. Hence, present petition is not maintainable.
4. I have carefully heard the rival submissions of counsels for the parties. I have also perused the entire material placed on record Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 13 of pages 20 particularly the impugned order, the contents of the revision petition specially the grounds taken therein as well as the record summoned from the Trial Court.
5. According to Ld. counsel for revisionists/petitioners, the impugned order dated 28.09.2007 is based on surmises and conjectures and has been passed without application of judicial mind. Ld. SDM has failed to understand that once the civil court has seized the matter and passed an effective order, she was having no jurisdiction to pass any order. In fact, she has crossed her power and jurisdiction. He also stressed that in passing the impugned order, she has committed gross contempt of the court and it is also in violation of principles of natural justice as the petitioners were not given the opportunity of hearing and the same was passed solely on the basis of police report. The respondents no.2 to 5 are in collusion with the local police and they had illegally dispossessed the petitioners from the property in collusion and connivance with each other. Ld. SDM had acted merely as a puppet in the hands of police and the respondents. The petitioners are still in settled and constructive possession of the property in dispute. It is also claimed that when the property was Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 14 of pages 20 seized, the goods owned by the petitioners were lying in the said sealed property and they are the perishable product and there is every likelihood that a huge quantity of wood and furniture would be damaged due to the sealing of the property. Finally, the petition as filed is perfectly maintainable.
6. Per contra, according to Ld. counsel for respondents, the present petition has been filed against sealing of the disputed property alongwith the interim application to deseal the disputed property and the same is nothing but an abuse of the process of the court as the petitioner is neither aggrieved of sealing of the subject property nor with respect to desealing of the same and is using this petition as an abuse of process of law to keep away the respondents from making use of the subject property. It is also claimed that the entire contents of the petition as alleged are wrong assertions in favour of the petitioners to justify their possession of the subject property and not regarding infirmity in the impugned order dated 28.09.2007, therefore, through the criminal revision, the petitioners are allegedly claiming possession of the disputed property in their favour wrongly which is not permissible in law. It is also claimed that the impugned Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 15 of pages 20 order (a temporary measure till the final disposal of the proceeding before Ld. SDM) is merely an interlocutory order and hence the same is barred u/s 397 (2) Cr.P.C. The present revision is not against initiation of proceedings by Ld. SDM but is against the interim order passed by Ld. SDM U/s 146 (1) Cr.P.C. The said order has not attained finality. Hence the revision petition before this court is not maintainable in law. Here in his said submissions, ld. counsel for respondents has placed reliance upon the following judgments:
(i).Kalloo Vs. State of UP 1998 CR. L. J. 648.
(ii).Jai Prakash Vs. Rajeshwari Prasad 2003 CR. L. J. 4278. It is also contended that the impugned order is of interim nature because Ld. SDM is yet to decide the actual physical possession after taking written statement and evidence of the parties and/or till the competent court determined the rights of the parties. It is an admitted fact that the petitioners participated before the Ld. SDM neither challenges the kalandra of the police nor the initiation of the proceedings u/s 145 Cr.P.C. by the Ld. SDM in the present revision. Hence the present criminal revision against the impugned order which is of interim nature is not maintainable. On merits, it is also Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 16 of pages 20 claimed that there is no infirmity in the impugned order. The status quo order dated 25.09.2007 passed by Hon'ble High Court was neither duly served on the police nor on the Ld. SDM by the petitioner and no evidence to this effect has been brought on record by the petitioners. Even otherwise, if there was status quo order on a disputed property even then the Ld. SDM upon finding breach of peace, imminent danger of violation of law and order is within jurisdiction to pass temporary order of sealing to prevent any untoward incident at the disputed property. The bare perusal of the record shows that on 26.09.2007, 27.09.2009 & 28.09.2007 there were tensed situation at the disputed property. The petitioners were admittedly at dispute w.r.t. possession and occupation of the property in question, and FIR was registered against the petitioners, wherein certain arrests were also made by the police. Hence there is no flaw in the impugned order dated 28.09.2007.
In the rebuttal, it is argued on behalf of the petitioners that the impugned order, as claimed by the respondent, is not of the nature of interlocutory order and therefore, the revision petition against the said order is perfectly maintainable. The proceeding U/s 145/146 of Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 17 of pages 20 the Code of Cr.P.C. are quasi civil and quasi criminal in nature. In this case instead of taking recourse to the normal procedure of civil court for lawful possession, the respondent no.2 to 5 herein above have adopted an illegal device to dispossess the petitioners, their own relatives, from the property in question. In their submissions Ld. counsel for petitioners has placed reliance upon a judgment reported as 153 (2008) DLT 64.
7. After giving due thoughts to the rival submissions made before me, I have come to the considered opinion that the present revision petitioner filed against sealing of the disputed property is devoid of substance as it has been failed to point out any illegality or material infirmity in the impugned order dated 28.09.2007. Admittedly, the parties have locked their horn in the civil litigations which are still pending before the civil court as well as before Hon'ble High Court and also the impugned order is of temporary nature whereby the property has been sealed temporary till the conclusion of the proceeding before the Ld. SDM and/or till the competent court determine the rights of the parties. The proceeding pending before Ld. SDM is yet to decide after taking written statement and evidence of the parties. In the entire Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 18 of pages 20 contents of the petition instead of pointing out any illegality or infirmity in the impugned order, the petitioner is raising assertion to justify their possession of the subject property. The impugned order being of a temporary measure is hit by the provisions of Section 397 (2) Cr.P.C. which reads as under: "The powers of revision conferred by sub Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding."
The revision petition is hit by the provisions of Sec.397 (2) Cr.P.C. which prohibits the revision against the interlocutory order. The present criminal revision is not against initiation of proceedings by Ld. SDM but is against the interim order passed U/s 146 (1) Cr.P.C. and the said interim order has not attained finality and therefore, the revision petition as filed is not maintainable. The judgment cited by the Ld. counsel for the petitioners is not applicable in the present set of circumstances, where the petitioners have not challenged the initiation of the proceeding by Ld. SDM under Section 145 Cr.P.C., rather, an interim order under Section 146 (1) Cr.P.C. has been challenged.
Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 19 of pages 20
8. Thus the revision petition as filed is devoid of substance and accordingly the same is hereby dismissed. With this the interim order dated 07.11.2007 passed in the present revision petition also stands vacated.
9. TCR alongwith the copy of judgment be sent back to the Ld. Trial Court.
10. Revision file be consigned to Record Room after completion of (Announced in the open (RAKESH KUMAR) court today on 05.06.2009) ASJ04 (NORTH)/DELHI Ram Saran etc. Vs. State etc. (CR No. 50/09) Page No. 20 of pages 20