Delhi District Court
[Mahanand Sharma vs . State & Anr.] on 8 December, 2014
In the matter of :-
[Mahanand Sharma Vs. State & Anr.]
Crl.Rev.Pet. No.: 04 / 2014
Dated : 08th December 2014.
IN THE COURT OF : SH. KANWALJEET ARORA :
SPECIAL JUDGE : CBI [PC ACT]:
NEW DELHI.
DWARKA COURTS :
Crl.Rev.No. : 04 / 2014.
Under sec. : 397 Cr.P.C.
1. Sh.Mahanand Sharma
S/o.: Late Sh.Ramswaroop,
R/o.: RZP5, Raj Nagar, PartI,
Palam, New Delhi.
[...Revisionist]
v e r s u s
1. The State
(Govt. of NCT of Delhi),
2. Shri Ashok Kumar,
S/o.: Late Sh.Kundan Lal,
R/o.: B51, Dashrath Puri,
Palam Dabri Road,
Delhi - 110045.
[.... Respondents]
Date of Institution of Revision : 09.07.2014.
Date of Allocation : 04.07.2014.
Date of conclusion of arguments : 29.11.2014.
Date of Order : 08.12.2014.
Crl.Rev.Pet.No.:04 / 2014 Page 1 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.]
Crl.Rev.Pet. No.: 04 / 2014
Dated : 08th December 2014.
[Particulars related to impugned order]
D.D. No. : 52 A
Under Section : Kalandra u/s 145
Cr.P.C dtd.21.11.13
Date of Impugned Order : 16.04.2014.
Name of Ld.Trial Court : Sh.Prince Dhawan,
Ld.SDM, Kapashera.
Memo of appearance:
Sh.N.C.Sharma, Advocate, Ld.Counsel for the revisionist.
None for respondent no.1 State.
Sh.Pawan Kr. Pandey, Advocate, Ld. Counsel for
Respondent no.2 Ashok Kumar.
O R D E R :
1. Registration of Kalandra vide DD No.52A dated 21.11.2013 by police of PS Chhawla, South West District, New Delhi, was the precursor for initiation of the proceedings titled "State vs. Mahanand Sharma & Ors." bearing Case No.128/SDM/KH/2013 before Ld.Sub Divisional Magistrate, Kapashera, Delhi.
2. These proceedings culminated with orders dated 16.04.2014 passed by Ld.SDM, Kapashera, whereby it was held that "Suit Property" ie. Plot no.44 Crl.Rev.Pet.No.:04 / 2014 Page 2 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
and 44A (measuring 125 square yards), Block A, Road No.8, Shyam Vihar, PhaseII, New Delhi being in possession of Sh.Ashok Kumar, who shall retain its possession till further orders from the competent court.
3. Revisionist Mahanand Sharma, the revisionist / petitioner herein, had taken exception to the orders dated 16.04.2014 passed by Sh.Prince Dhawan, Ld.Sub Divisional Magistrate Kapashera, seeking setting aside of said orders as well as seeking directions to SHO PS Chhawla, to hand over possession of the Suit Property to the Revisionist.
4. Notice of the revision was given to the respondents. Trial Court Record was also summoned.
5. Pursuant to service of notice, none appeared for State. None appeared on behalf of respondent no.1. On behalf of respondent no.2 Sh.Pawan Kumar Pandey, Advocate, tendered his appearance. Crl.Rev.Pet.No.:04 / 2014 Page 3 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
6. I have heard the arguments advanced by Sh.N.C.Sharma, Advocate, Ld.Counsel for the revisionist. I have also heard Sh.Pawan Kumar Pandey, Advocate, Ld.Counsel for the respondent and have also gone through the revision petition.
7. It is contended by Sh.N.C.Sharma, Advocate for the petitioner / revisionist, assailing the impugned order, that the same has been passed by Ld.SDM, without application of mind and on the basis of wrong assumptions and presumptions. He contended that Ld.SDM has failed to appreciate that petitioner was the owner of the Suit Property and was also in possession thereof. He contended relying upon NCR No. 1337 / 2012 dated 08.11.2012 and DD No.34 B dated 15.11.2012 that petitioner was the owner of the Suit Property and pursuant to loss of the original documents, he had filed an NCR with the police and had got DD No. 34 B recorded which fact was not considered by Ld.SDM.
8. Ld.Counsel for petitioner further contended that Ld.SDM had failed to appreciate that petitioner had Crl.Rev.Pet.No.:04 / 2014 Page 4 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
lodged repeated complaints with police dated 10.06.2013 ie. DD No.62B, dated 01.11.2013, 20.11.2013 and 21.11.2013, which establishes his possession over the Suit Property. He contended that Ld.SDM failed to appreciate that the title documents, produced by respondent no.2 Ashok Kumar were forged documents which were got forged by him in connivance with Pradeep Chhikara, the erstwhile owner. He contended that Ld.SDM has failed to appreciate that Pradeep Chhikara has also admitted before the police to have sold some plots to the petitioner. He contended that Ld.SDM had failed to take into consideration that in the title documents, allegedly produced by respondent no.2, there is a mention of Khasra No.8/15, which should not have been there, had the title documents been genuine.
He contended that Ld.SDM was in a hurry to dispose off the matter and in his haste, he had arrived at a wrong and perverse finding, which resulted in orders dated 16.04.2014, therefore the same be setaside.
9. Countering these contentions, it was vociferously argued by Sh.Pawan Kumar Pandey, Crl.Rev.Pet.No.:04 / 2014 Page 5 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
Advocate appearing on behalf of respondent no.2, that there are no merits in any of the contentions raised on behalf of the petitioner. He contended that there is no document or any other evidence with the petitioner of his being, owner or in possession of the Suit Property. He contended that despite opportunities, petitioner has failed to produce any document of his ownership or of his being in possession of the Suit Property before Ld.SDM. It is contended by Ld.Counsel for respondent no.2 that Pradeep Chhikara being the owner of the Suit Property by virtue of the original documents, executed in his favor had sold the same to one Prince Kumar on 12.06.2013 and said Prince Kumar, inturn sold it to respondent no.2 Ashok Kumar on 18.09.2013. He contended that the possession of the Suit Property was earlier with Pradeep Chhikara, at the time when he sold the same to Prince Kumar. Prince Kumar inturn handed over the vacant possession of Suit Property to respondent no.2 Ashok Kumar, and thereafter all along, it remained with respondent no.2, as it evident even from the complaints lodged with the police by the petitioner. Crl.Rev.Pet.No.:04 / 2014 Page 6 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
10. It is contended by Ld.Counsel for respondents that no Civil Suit claiming any relief whatsoever, has been filed by the petitioner with respect to the Suit Property. He contended that only on the basis of complaints lodged by the petitioner with police, he cannot be presumed to be in possession of the Suit Property, at any point of time.
11. I have given my thoughtful consideration to the rival contentions and have perused the material on the Trial Court Record, including the Kalandra No.52A dated 21.11.2013. I have gone through the impugned order dated 16.04.2014 passed by Ld.SDM, in the light of arguments advanced. I have also gone through the entire proceedings conducted by Ld.SDM right from initiation of the proceedings leading to the orders dated 16.04.2014.
12. In order to appreciate the contentions advanced, it is necessary to peruse Section 145 of Code of Criminal Procedure. The same reproduced is as under
: Crl.Rev.Pet.No.:04 / 2014 Page 7 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
SECTION 145 : PROCEDURE WHERE DISPUTE CONCERNING LAND OR WATER IS LIKELY TO CAUSE BREACH OF PEACE : (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(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 subsection (1), in possession of the subject of dispute:Crl.Rev.Pet.No.:04 / 2014 Page 8 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
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 sub section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to subsection (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this subsection shall be served and published in the manner laid down in sub section (3).
(7) ...
(8) ...
(9) ...
(10) ...Crl.Rev.Pet.No.:04 / 2014 Page 9 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
13. Bare perusal of this Provision, explicits the object for which it was brought on the Statute Book by the Legislature. Possession is considered an important right / aspect, which requires to be protected by Law. One of the main purpose of enforcement of Law qua this aspect, is to maintain peace and order in Society. Any dispute relating to any property being a Civil Dispute, is required to be settled in a civilized manner taking recourse to due process of law, instead of taking the Law in their own hands, by the parties involved in the dispute.
14. Whenever any dispute relating to any land, property arises, giving rise to any potential threat to peace and tranquility of the Society, Section 145 of the Code authorizes the Executive Magistrate, to take cognizance of the same. He as per the procedure laid down in Section 145, is required to hold an enquiry, with respect to possession sans the rights of the parties to possession or title thereof. The object and purpose for Crl.Rev.Pet.No.:04 / 2014 Page 10 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
which this provision has been incorporated, is to provide a speedy and summary remedy, so as to prevent any "breach of peace" between the parties, disputing with respect to question of possession.
15. This provision confines the nature and scope of the jurisdiction of the Magistrate taking cognizance of the dispute. The Magistrate is required to ascertain as to which of the disputing parties was in possession as on date of reference to him by the police, or within 2 months, next before the said date as has been referred to, in the Proviso to SubSection (4) of Section 145 Cr.P.C. He is then required to pass an order, so as to maintain the statusquo with respect to possession till the rights of the parties are determined by a competent Court of Civil Jurisdiction.
16. Once a preliminary order under section 145(1) Cr.P.C, taking cognizance of dispute is passed, the Magistrate as per provisions of Subsection (4) is required to decide, as to who was in possession of the property, on the date when he received information from Crl.Rev.Pet.No.:04 / 2014 Page 11 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
the police and 2 months prior thereto, and then he has to give a declaration in favor of such party, as per the requirement of SubSection (6). It is further emanating from the provisions of Section 145 Cr.P.C that in case, any party is found to have been forcibly dispossessed within 2 months next before the date on which the report of a Police Officer or any other information on the basis of which, the proceedings were set in motion by the Magistrate, or between such date, and date of the preliminary order under Subsection (1), then such party which has been wrongfully dispossessed is required to be considered as being in possession on the date of preliminary order. In such an eventuality, taking recourse to the Proviso attached to SubSection 4 read with SubSection 6, a declaration is required to be made by the concerned Magistrate in favor of such party, and the said party who have been so dispossessed, may also be restored into possession.
17. On conjoint reading of all SubSections of Section 145 Cr.P.C, the only proposition which emanates is that, once a declaration is made by the concerned Crl.Rev.Pet.No.:04 / 2014 Page 12 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
Magistrate, then the unsuccessful party is to approach the competent court of Civil Jurisdiction, in order to secure such order, as would enable his entering into possession, subject offcourse, to his establishing the title and a right to possession over the property in question, to the satisfaction of such Civil Court.
18. Having discussed about the object, nature and scope of the provisions of Section 145 Cr.P.C and the purpose for which it was brought on the Statute Book to be invoked by Ld.Executive Magistrate, I would hasten to add that such invocation by Ld.Executive Magistrate and the culmination of his proceedings is always a subject matter of Judicial Review. The same being quasicriminal in nature and an executive action.
19. By way of present revision petition, orders passed by Ld.SDM has been challenged by petitioner Mahanand Sharma.
20. While considering the present revision petition wherein the petitioner has challenged the orders Crl.Rev.Pet.No.:04 / 2014 Page 13 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
passed by Ld.SDM, it is required to be seen as to whether the same have been passed taking into account all the necessary facts produced before Ld.SDM in the form of oral and documentary evidence. It is further required to be seen, as to whether the said order suffers from any material irregularity or infirmity, resulting into some injustice to any of the parties.
21. It is pertinent to mention that the scope of this Court, in its revisional jurisdiction is limited and is required to be exercised only if, it is found that some injustice has resulted due to impugned order passed by Ld.SDM. Further, if Ld.SDM while passing the impugned order has acted, contrary to the well established principles of Law, or the order has been passed without any evidence to support the finding or if the finding arrived at, by Ld.SDM is perverse or such as no reasonable man could have arrived at on the same, on the basis of evidence, so produced before it.
22. Administration of Criminal Justice System rests on sound and well established legal principles. We Crl.Rev.Pet.No.:04 / 2014 Page 14 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
are governed by a "Codified Law" as all the procedural aspects have been duly codified in Code of Criminal Procedure. The object of the Code is to ensure that the parties to any litigation gets a fair trial on certain well established and well understood lines in accordance with the notions of Principles of Natural Justice. These procedures have been duly codified in the Code, so as to have a uniform applicability. It is expected of every Court entrusted with responsibility of criminal adjudication to follow the duly prescribed procedure for adjudication of any matter pending before it, and not to come up with different procedures for different cases, so as to spring surprises for the parties to any dispute.
23. Further, it is established principle of adjudication of Criminal Justice System that whenever a particular procedure and stage is "prescribed", for having certain factual or legal aspects to be taken into consideration, by the Court asesin of the matter, then all other procedure and stages for the same are "proscribed".
Crl.Rev.Pet.No.:04 / 2014 Page 15 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
24. In the light of above, I would consider the rival contentions advanced on behalf of the parties, visa vis the impugned order and the proceedings conducted by Ld.SDM.
25. The first facet of the argument advanced by Ld.Counsel for the revisionist is that, he being owner of the Suit Property, was in possession but has been wrongly dispossessed by respondent no.2. It is contended on behalf of revisionist that the original title documents, with respect to Suit Property, which he had purchased from Pradeep Chhikara were lost by him, for which NCR No.1337 / 2012 was registered on 08.11.2012. It is however contended that Ld.SDM has failed to take note of this fact.
26. I do not find any force in this contention of Ld.Counsel for the revisionist, as bare perusal of the impugned order as well as the proceeding sheet of the present case, recorded by Ld.SDM reveals otherwise. Ld.SDM did take into consideration this aspect. Rather, from the proceedings of Ld.SDM dated 21.03.2014, it is Crl.Rev.Pet.No.:04 / 2014 Page 16 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
apparent that the petitioner was represented by a Counsel and this argument was extended and was recorded by Ld.SDM. It is also evident from the said proceedings that petitioner sought time to file details of bank statement to prove payments made through cheques, to Pradeep Chhikara, the erstwhile owner. Ld.SDM did permit the petitioner to do the needful which was done on the next date of hearing and the said aspect was duly considered by Ld.SDM.
27. It is apparent on bare perusal of the NCR dated 08.11.2012, and the subsequent complaint of the petitioner dated 15.11.2012 bearing DD No.34B with PS Chhawla, that in neither the NCR nor in DD No.34B, there is any mention of the present Suit Property ie. Plot no.44 and 44A (measuring 125 square yards), Block A, Road No.8, Shyam Vihar, PhaseII, New Delhi. Nowhere, in the NCR lodged by the petitioner he has mentioned of having lost the ownership documents pertaining to the present "Suit Property". Mere mention of other plots in the area of Shyam Vihar, in the said NCR, alone, without any supporting oral or documentary evidence, Crl.Rev.Pet.No.:04 / 2014 Page 17 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
does not substantiates the claim of ownership and possession of the petitioner over the Suit Property.
28. No doubt, in the proceedings u/s 145 Cr.P.C., Ld.SDM is required to adjudicate as to who was in actual and physical possession of the disputed property at the relevant point of time. However, in those proceedings, evidence of the title can be given by the parties. Merely because Ld.SDM is required to decide the factum of actual possession of property in question, he cannot and should not thwart the parties to the dispute from submitting their documents of title.
29. It is a matter of common knowledge that for any builtup or inhabited property, it is easier for the parties to produce evidence regarding their possession. However, for deciding about possession of a vacant piece of land, other documentary evidence besides the title documents, are rare to produce. For such like property which does not admit of physical possession, the documents concerning title if produced, cannot be brushed aside by Ld.SDM.
Crl.Rev.Pet.No.:04 / 2014 Page 18 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
30. In the present case, it is apparent from the proceedings conducted by Ld.SDM, that he not only permitted the parties as was required under section 145 Cr.P.C to file their written statements and to produce documents, but had also permitted to produce other evidence including bank records to show that payment for purchasing the suit property, was or was not made.
31. I have gone through the impugned order dated 16.04.2014. It is apparent on perusal of same that the claim made by the petitioner of his having made the payment towards purchase of the Suit Property to Pradeep Chhikara on the basis of the bank records and the cheque numbers were also considered by Ld.SDM. I myself have gone through those cheque numbers mentioned by the petitioner, in his complaint to the police vide which he has claimed to have made payments to Pradeep Chhikara towards purchase of Suit Property, the same very cheque numbers were used by him, as "consideration amount" paid by him, to some other persons. Those very cheque numbers finds mention in Crl.Rev.Pet.No.:04 / 2014 Page 19 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
the written statement filed by petitioner / revisionist himself in the cases titled "Satish Kumar vs. Mahanand Sharma" and "Anil Kumar vs. Mahanand Sharma & Ors." pending in the Courts of Sh.K.Venugopal, the then Ld.ADJ and in the court of Sh.Vinod Yadav, Ld.ADJ, Dwarka Courts respectively.
32. Perusal of the Trial Court Record of Ld.SDM reveals that petitioner failed to produce any record or evidence, of his having paid the consideration amount to Pradeep Chhikara, as claimed by him, with respect to present "Suit Property".
33. Ld.Counsel for petitioner to bring home his contention, had relied upon the statement of Pradeep Chhikara recorded by police of PS Chhawla. He contended that Pradeep Chhikara himself had admitted to have sold some plots in the area of Shyam Vihar to Mahanand Sharma. However this contention of Ld.Counsel for the petitioner, to my mind does not hold much waters.
Crl.Rev.Pet.No.:04 / 2014 Page 20 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
34. No doubt, Pradeep Chhikara in one of the statements given to the police of PS Chhawala, did state that he had sold some plots in the area of Shyam Vihar to petitioner Mahanand Sharma, but from said statement, it cannot be inferred or presumed that the same includes the Suit Property as well. More particularly when Pradeep Chhikaa has categorically stated before Ld.SDM in his written statement that he had sold the "Suit Property" only to Prince Kumar who inturn sold it to respondent no.2 Ashok Kumar and to noone else.
35. The statement so made by Pradeep Chhikara harmoniously synchronizes with the fact that admittedly petitioner Mahanand Sharma has other plots in the area of Shyam Vihar which were purchased by him from Pradeep Chhikara.
36. As Ld.SDM had dealtwith this claim of the petitioner while passing the impugned order dated 16.04.2014, therefore, I do not find any infirmity in the same on this aspect requiring any interference. More Crl.Rev.Pet.No.:04 / 2014 Page 21 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
particularly, when no other oral or documentary evidence in any form was submitted by the petitioner herein during the course of proceedings before Ld.SDM for his consideration. Merely because, in a series of complaints lodged by the petitioner from 08.11.2012 till December 2013, he has claimed himself to be in possession, being the owner of Suit Property, the same does not make him the owner & occupier thereof, without any substantive, oral and documentary evidence to that effect.
37. The other contentions raised by Ld.Counsel for the revisionist challenging the legality, discrepancy, authenticity and genuineness of title documents so produced, before Ld.SDM by respondent no.2 in his favor, are not being advertedto, as the same are beyond the scope and purview of the present revision petition.
Further, those challenges raised by Ld.Counsel for the revisionist, are not required to be gone into, so far as disposal of present petition is concerned. Crl.Rev.Pet.No.:04 / 2014 Page 22 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
38. Another limb of arguments advanced by Ld.Counsel for revisionist was that Ld.SDM had failed to consider these discrepancies in the title documents, which vitiates the impugned order dated 16.04.2014.
39. I do not find any merits in this contention as well, as making any observation or decision on the genuineness of the title documents so produced by respondent no.2 in his favor, was beyond the purview and scope of the proceedings, with which Ld.SDM was seizedof. He was only require to ascertain the actual possession over the "suit property".
40. This has brought me down to the second facet of the contentions advanced by Ld.Counsel for the revisionist, which revolves around the most material aspect of this provision ie. "Possession" over the Suit Property. It is contended by Ld.Counsel for the revisionist that the possession over the Suit Property was with him till it was taken over by respondent no.2 to raise construction. Ld.Counsel for the revisionist contended that Ld.SDM has failed to consider this Crl.Rev.Pet.No.:04 / 2014 Page 23 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
important aspect. He contended that as possession was with the petitioner during the next two months, before the date of issuance of notice u/s 145(1) Cr.P.C., and the date when the matter was reported to Ld.SDM by police, therefore, possession ought to have been restored by Ld.SDM to the petitioner taking recourse to the provisions of SubSection (4) of Section 145 Cr.P.C.
41. I do not find any merits in this contention of Ld.Counsel for the revisionist, as well. Perusal of the impugned order reveals that all these contentions of the petitioner were squarely dealt with by Ld.SDM, who in addition to permitting the parties to the dispute, to produce documents and evidence, had also constituted a Committee, for ascertaining the aspect of possession.
42. Merely because the Committee so constituted by Ld.SDM, failed to give any concrete and specific finding with respect to the possession over the "Suit Property," as on date of issuance of notice under section 145(1) Cr.P.C dated 18.12.2013, does not create any embargo for Ld.SDM to arrive at the conclusion on Crl.Rev.Pet.No.:04 / 2014 Page 24 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
the basis of other material produced before him.
43. It is clearly evident on perusal of the complaints lodged by the petitioner dated 15.11.2012 bearing DD No.34B dated 10.06.2013, and 01.11.2013 bearing DD No.58B, that there is no mention of the Suit Property ie. Plot no.44 and 44A (measuring 125 square yards), Block A, Road No.8, Shyam Vihar, PhaseII, New Delhi. In these complaints, petitioner has merely alleged that he being the owner of certain plots, in the area, is in possession and some persons at instance of Pradeep Chhikara, are trying to disturb his possession, without specifying as to what property is being referredto, by him in these complaints.
44. The first occasion when petitioner has raised dispute with respect to this suit property, was in his complaint dated 21.11.2013. Further, it is apparent from the Kalandra bearing DD No.52A dated 21.11.2013, which was the precursor of the present proceedings that on said date, it was respondent no.2 who was raising construction on the Suit Property. Meaning thereby that Crl.Rev.Pet.No.:04 / 2014 Page 25 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
respondent no.2 was in possession of the Suit Property, as on said date, as it was he, who was raising construction over the same.
45. It is contended by Ld.Counsel for the revisionist that respondent no.2 had claimed to have purchased this property from respondent no.3 only on 18.09.2013, therefore, he by no stretch of imagination can be said to be in possession of this property for a period of 2 months, before the date of issuance of notice.
Therefore the impugned order is bad and could not have been passed in favor of respondent no.2 Ashok Kumar.
46. This contention of Ld.Counsel for the revisionist,to my mind, is not sustainable, as perusal of documents submitted by respondent no.2 with Ld.SDM, coupled with the written statement of Pradeep Chhikara that he had sold this property to one Prince Kumar who in turn sold it to respondent no.2 only and had also handed over the possession thereof, goes on to establish that respondent no.2 has stepped into the shoes of Prince Kumar and that of Pradeep Chhikara, so far as Crl.Rev.Pet.No.:04 / 2014 Page 26 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
continuity of possession over the Suit Property, is concerned.
47. Merely, because respondent no.2, as claimed by petitioner, at best came in possession of Suit Property on 18.09.2013 and not before that, does not ipsofacto establishes the possession of petitioner herein, over the same prior thereto, without any other evidence to that effect.
48. No, evidence either in any oral or documentary form was produced by the petitioner before Ld.SDM to authenticate his possession over the suit property, at any point of time. Although, in his earlier complaints, wherein the petitioner has not even mentioned specifically about the suit property, he has mentioned his apprehension of trespassing by respondents, but, he has failed to bring on record before Ld.SDM of any Civil Proceedings initiated by him before any court of law, seeking the relief of "injunction" from any apprehended trespass over the "Suit property" by the respondents.
Crl.Rev.Pet.No.:04 / 2014 Page 27 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
49. Even otherwise, although petitioner has claimed himself to be the owner of the Suit Property by virtue of the documents, executed in his favor by Pradeep Chhikara, which he had lost. Further, as per his own complaint to the police dated 15.11.2012, he alleged that said Pradeep Chhikara has turned hostile to his claim, however, petitioner has failed to initiate any proceedings before any Court of Law seeking relief of "Declaration and Injunction" with respect to the Suit Property even after expriry of more than 2 years from the alleged date of his losing the title documents.
50. Had there been any semblance int he contentions of petitioner, he would have invoked the Jurisdiction of Civil Court, to protect his alleged rights over the suit property. But that was not to be.
51. No such record was produced by the petitioner before Ld.SDM. Apart from this, petitioner has also failed to produce any oral evidence of any witness to prove that he was in possession of the Suit Crl.Rev.Pet.No.:04 / 2014 Page 28 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
Property atleast till 2 months before the date of issuance of notice u/s 145 (1) Cr.P.C by Ld.SDM or the date of registration of Kalandra vide DD No.52A dated 21.11.2013.
52. In absence of any evidence or record before him on behalf of petitioner despite opportunities, Ld.SDM to my mind, could not have arrived at any other conclusion.
53. Petitioner till date even after passing of the impugned order dated 16.04.2014 by Ld.SDM, has failed to invoke the jurisdiction of Civil Court, for asserting his rights over the Suit Property, being owner thereof, as claimed by him.,
54. In view of above, I do not find any substance in the contentions raised by Ld.Counsel for the petitioner .
55. Having regards to these facts and circumstances, I do not find that there was any occasion Crl.Rev.Pet.No.:04 / 2014 Page 29 of 31 In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
with Ld.SDM to assume or presume these contentions raised by Ld. Counsel for the revisionist while passing the impugned order. Ld.SDM was well within his rights to dispose off Kalandra u/s 145 Cr.P.C as it was done, vide orders dated 16.04.2014.
56. In view of the above discussion, I do not find any infirmity in the impugned orders passed by Ld.SDM, dated 16.04.2014. Thus there are no grounds in the present revision petition for interfering with the impugned orders dated 16.04.2014. Revision Petition accordingly stands dismissed.
57. Before parting with this order, I wish to add that nothing mentioned hereinabove, shall tantamount to any expression on merits of any prospective Civil Proceedings concerning "Right to possession" and "Title over the Suit Property", if any, initiated by either of the parties, as the same have been observed only for disposal of the present revision petition.
Crl.Rev.Pet.No.:04 / 2014 Page 30 of 31
In the matter of :-
[Mahanand Sharma Vs. State & Anr.] Crl.Rev.Pet. No.: 04 / 2014 Dated : 08th December 2014.
58. The Trial Court record along with copy of this order be sent to the concerned Court.
59. The revision file be consigned to Record Room.
Announced in open court of 08th Day of December, 2014.
(KANWAL JEET ARORA) SPECIAL JUDGE : CBI (PC ACT), DWARKA COURTS, NEW DELHI.
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