DWARKA SINGH CHAUHAN Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure, which is directed against an order of the Additional Sessions Judge, upholding that of the learned Sub-divisional Magistrate, ordering the sealing of a premises u/s 146 of the Code of Criminal Procedure, exposes yet another instance of resort to the criminal process by intending buyers of immovable property to dispossess long standing occupation, by passing the rather dilatory civil remedies.

(2.) Premises bearing No. A-41, Sawan Park, Ashok Vihar, Delhi apparently belonged to and was in the occupation of the Prafull Kumar Sanyal. Sanyal died in May, 1966. Dwarka Singh Chanhan, the petitioner, had been living in a part of the property, either as a tenant under Sanyal or otherwise under some arrangement with him during his life time. Petitioner continued to be in occupation, either of a part or of the whole of the premises, since the death of Sanyal and there is controversy as to the extent of the area in the occupation of the petitioner and as to the precise nature of his right to occupation. There is also some controversy if any of the heirs of Sanyal, - consisting of a son and two daughters, ever occupied any part of the premises during the life time of Sanyal or soon after his death. It all, however, went well until February, 1978. In February, 1978, it is claimed that a report was lodged with the police that the petitioner had forcibly occupied a room and a verandah in addition to the portion under his tenancy. Mohinder Singh and Kahiya Singh, the two brothers, who are respondents 2 and 3, claim that by an agreement of March 15, 1978, the heirs of Sanyal agreed to sell the property in favour of their father Hargian Singh. Hargian Singh was since died and that is how respondents 2 and 3 claim to be entitled to the property, including its possession on the ground that the aforesaid agreement mentioned that the possession of the "entire property" had been delivered in part performance to the intending buyers. According to the petitioner, on February 2, 1981, while the petitioner was away, the said respondents forcibly dispossessed the women folk of the family of the petitioner and on the matter being reported to the Police, acase, being F.I.R. 57/81, under Sections 448/ 380/452/341/427/427/34 Indian Penal Code was registered against the said respondents and they are standing their trial in a criminal court on the aforesaid charges. When the respondents were arrested on the aforesaid charges, petitioner claims to have re-occupied the entire house from which he had been illegally dispossessed by the respondents and it appears that a case under Section 448 I.P.C. was also registered by the Police against the petitioner. On February 13, 1981, the petitioner accordingly filed a civil suit, being Suit No. 193/81, against the respondents seeking to restrain them from interfering with the petitioner's possession of the house and to prevent the petitioner's dispossession from it otherwise than in accordance with law. The suit is still pending. The petitioner also sought an interim restraint order in terms of the relief in the Suit and by an order of March 3. 1981, Shri V. K. Jain, Sub-Judge 1st Class, Delhi, restrained the said respondents from dispossessing the petitioner forcibly from the property "except the portions marked D-2 and D-4 in the site plan" filed by the respondents. In respect of portion marked D-2 and D-4, parties were directed "to maintain status quo". It was further directed that "any party shall not use their portions and shall not put any lock, etc. on them". The learned Subordinate Judge further ordered that the order "will stand automatically vacated if the plaintiff does not coclude his evidence within 2 hearings fixed for recording hisevidence". In the course of this order, which was made after notice to the respondents and after hearing both the parties, the Court, inter alia, observed that according to the written statement filed by the respondents on February 25 1981, they "had admitted that on that date, the plaintiff was in possession of the entire property." Earlier, the Court had appointed Local Commissioner to report with regard to the precise position of possession and the Local Commissioner had reported, and the court notices, that room marked D-l was opened by the plaintiff with his keys indicating that the plaintiff was in possession of the room, room marked D-2 bore the locks of both the parties, room D-3 was opened by the son of the plaintiff with his key, room D-4 did not bear any lock and was lying open and that stairs hall D-6 was also open. It was further found that in the verandah, marked D-7, goods belonging to the plaintiff were found stacked and the local commissioner made no comment with regard to courtyard marked D-5. The trial court also found that prima facie neither the plaintiff nor the respondent had any title to the property. The petitioner claimed title by virtue of a Will, said to have been executed in his favour by Sanyal, but this claim was dispelled on the ground that the plaint made no mention of it. The claim of the respondents to the property was based on the aforesaid agreement but it was found that, by itself, conferred no title. It was further observed that the recital in the agreement that the possession of the property was given was "not absolutely correct" as the petitioner was admittedly a tenant in respect of one room. In view of the dispute with regard to portion marked D-2 and D-4 the restraint order was confined to the rest of the property. This order has become final because it was not challenged by the respondents in appeal. Subsequently, by an order of July 27, 1981 the learned Sub-Judge observed that keeping in view the fact that the plaintiff had not committed any default and even his own statement had not been recorded completely, "the order is modified to the extent that the injunction shall continue if the plaintiff conclues his evidence within one hearing fixed for recording his evidence after the conclusion of his cross-examination". The case came up subsequently on October 20, 1982, when the learned Sub-Judge observed that four witnesses of the plaintiff were present but Counsel for the defendants was not present. Case was accordingly adjourned and it was observed that "cost of the remaining four P. Ws. shall be borne by the defendants".

(3.) Meanwhile it appears that both parties approached the criminal court u/s 145 of the Cr. P.C. with allegations and counter-allegations and after calling the report of the Police, a preliminary order u/s 145 Cr. P.C. was made by the Sub-Divisional Magistrate concerned and parties were required to produce evidence as to the actual physical possession on the material date. This order was made on April 8, 1981. The learned Sub-divisional Magistrate recorded some evidence on the question of actual physical possession, On October 21, 1982, Mohinder Singh, one of the respondents, who alone is a party to the proceedings u/s 145 Cr. P.C.. presented anapplication for an order of attachment u/s 146 of the Code of Criminal Procedure on which the learned Magistrate sought a "fresh police report on the situation. The learned Magistrate heard the parties and made an order on December 16, 1982 "for fresh up-to-date police report on the situation". On December 21, 1982, the learned Magistrate made the following order :