BALHAR SINGH Vs. GOVERDHAN DASS

JUDGEMENT

(1.) One Sohan Singh (S.S.) owns B-71, Kirti Nagar Industrial Area and was having Saw Mill with machinery, office room etc. He let out all these to Balhar Singh (B.S.) on 28.5-76 and put him into exclusive possession of the plot who began running the Saw Mill. Subsequently S.S. wanted to increase the rent or alternatively to quit, and with that view got the power and light connections disconnected in Jan. 1979. Petitioner there upon filled prosecution u/s 45/48 of Delhi Rent Act against S.S. in March, 1979, who was summoned as accused in that case. S.S. then filed a suit against tenant torrent in 1979, which was ultimately dismissed. S.S. then filed eviction petition against petitioner in Sept., 1980 which was dismissed as withdrawn on 22-10-81. In 1981, Sohan Singh, wanting to emigrate to Canada, planned to dispose of the property, contemplated its sale to one Gulab and a threat to dispossess petitioner was given who, on 5-3-81 filed suit for injunction against S.S. and Gulab, etc. Civil Court granted interim injunction on 13-3-81. On 6-6-81 respondent Goverdhan Dass (G. Dass) his sons Nathu and Omi threatened the petitioner with forcible dispossession on the ground that they had purchased the property from S.S. Petitioner got sent legal notices to them that he should not be evicted forcibly and without due course of law. These notices were never replied to. On 12-6.81 (& 13-6-81) petitioner complained to Mayapuri. Police that S.S., Gulab, Nathu, Omi etc. were threatening him with forcible dispossession. He mentioned that eviction petition was filed by S.S. against him and he had obtained injunction and he specifically sought protection of the police against threatened wrongful and forcible dispossession. On 12-6-81 there was an abortive attempt by Goverdhan Dass etc to break into the property by demolition of the wooden gate and fence around the plot. Petitioner's .counsel gave details of the incident in his communication of 13-6-81 to the D.C.P. South and personally met the D.C.P. On 29 6-81 Petitioner also filed a suit against S.S., Goverdhan Dass etc. for permanent injunction in which an interim injunction was granted & confirmed in August 81. But on 2.7.81, one D. Singh, S.I. of Police came to the plot, abused petitioner, and threatened, him that if he did not vacate, he would be involved in false cases and would even be put. under arrest. Petitioner complained of this to Home Minister and SHO, P.S. Naraina. On the same date G. Dass lodged report at. PP Mayapuri, claiming to have agreed to purchase the property from S.S. and to have paid earnest money of Rs. 22000.00 and admitted that petitioner was in possession. Between July 3 and 13, S.S. sent number of complaints to various authorities of his apprehension that there was a conspiracy to wrongfully and forcibly dispossess him from the property with the connivance of the police and to implicate him in false criminal cases. A complaint was also made to Deputy Commissionor of Police (Vigilence) against police officers. Instead of relief proceedings u/s 107 Cr. P.C. were initiated against him and his sons. On 14.7.81 G. Dass reported to police Balhar Singh Vs. Goverdhan Dass etc. that petitioner wanted to take possession of the plot from him forcibly. On this S.I. Didar Singh sent a report which was followed by Kalandara submitted to SDM u/s 145 Cr. P.C. on the same date. Petitioner claims that he was forcibly & wrongfully dispossessed by Goverdhan Dass etc. on 16.7.81 from the office room of property on which he reported to the Police Commissioner. There after on 19.7.81, Omi, Nathu etc forcibly entered the plot and were accompanied by a police officer and a constable. The intruders had been nabbed by the public but the police party got them extricated, and ran away from the scene leaving their cycle behind. A report of this incident was made to flying squad. On 20.7.81 the petitioner sent detailed report of the incident, to the Lt. Governor, P.M., Comm. of Police, DCP South and DCP Vigilence. On 21.7.81, the SDM made a composite order u/s 145(1) and 146(1) Criminal Procedure Code . Pursuant to this order of attachment the police sealed, the property on 23.7.81 but before sealing an attempt was made by the police to throw away movable goods of the petitioner allegedly with a view to destroy evidence of possession of the petitioner. The family members of the petitioner and public thwarted foul attempt. Inventory of goods of B.S. was not made by Police on 23.7.81 Next day petitioner got the site photographed. On 27.7.81 petitioner complained to SDM that G. Dass attempted to break Seal on 25.7.81, to remove petitioner's goods to destroy evidence and asked for preparation of inventory of goods. Newspaper Pratap' on 27.7.81 reported the incident of police connivance in its paper. On 28.7.81, petitioner sued police officers & others for injunction. SDM on 30.7.81, ordered preparation of inventory. Parties then filed their w/Ss. SDM then held the enquiry and dealt with the case by an elabarate order of 19.3.83 and concluded that he was unable to satisfy himself as as to which party was in possession on material date and directed that property should remain sealed till decision of parties rights by a competent court. Petitioner filed revision against this to High Court. After giving above facts in detail, Judgment proceeds :)

(2.) I have heard learned Counsel for the parties at considerable length. I also allowed both the parties to produce additional material in support of rival contentions. While Balhar Singh produced copies of number of documents consisting of part of the official records either of proceedings filed in Courts between him and S.S. or of complaints and reports to the police as also against Police officers in relation to their conduct of the present proceedings. G. Das, on the other hand, after a number of adjournments produced a copy of an undated application to DESU for restoration of power connection, a cyclostyled letter of June 25, 1981 in reply from DESU and a copy of a further letter to DESU of June 26.6.81. The first and last of these bear the endorsement of DESU with regard to their receipt. The endorsement in the first is of date line 11.6.81. The first and last of these documents mention that possession of the property has been handed over to him by S.S.

(3.) It was primarily for the trial court to find, after giving a reasonable opportunity to the parties of placing both oral and documentary evidence before it, which, if any of the parties was in actual physical possession on the material date and if on the material such a finding was not possible to direct the property to remain in judicial custody till the determination of the material by a civil court. The trial court has examined the entire material and written a rather elaborate judgment expressing on its assessment of the material its inability to return a finding in favour of one or the other of the parties even though it has in unequivocal terms condemned the claim of G. Dass as a "concoction" and the contention of S.S. that he had handed over possession of property at the time of the agreement to G. Das as "unreliable". It has nevertheles further held that the evidence produced by Balhar Singh himself is insufficient and the circumstances that he has brought out in cross examination or on the basis of past record of proceedings between Balhar Singh and S.S. on the one hand and the various reports of Balhar Singh to the police and against the police officers on the other by themselves would not constitute conclusive evidence of Balhar Singh's exclusive physical possession of the entire property. A civil court is already seized of the matter at the instance of G. Dass pursuant to the Magisterial order. Ordinarily, therefore, this Court would be reluctant to interfere either in the exercise of its revisional or inherent jurisdiction, even if this Court was 1985. Rajdhani Law Reporter 317 inclined to take a view, on an assessment of the existing material, which may be at variance with the way the trial court has looked at the matter. But unfortunately, for G. Das, as indeed, the police officers concerned in the matter, there are unusual features which would justify not only interference with the impugned order but would also call for a censure, albeit a strong censure, of the conduct of G. Dass and number of police officers, who were concerned with the proceedings leading to the Kalandara. The matterial on record, irrespective of whether it is produced by one party or the other or consists of police records and irrespective of the fact whether it consists of oral evidence of one witness or the other or is direct or of a circumstantial nature, establishes beyond doubt that Balhar Singh for whose eviction, efforts were being made by S.S. for a long time was in actual physical possession of the office room until 16.1981 and of the rest of the property at all material times until he was forcibly and wrongfully dispossesred under the cover of an attachment order as a part of a conspiracy between G. Das and Police officers concerned to get rid of Balhar Singh's possession. It is unfortunate that the learned Magistrate misdirected himself in making a distinction, as it were, between material placed by different parties and in ignoring that of the unimpeachable material on record leads only to one conclusion that Balhar Singh was in possession on the material date and has been in exclusive possession of the entire property for years, it is absolutely irrelevant if this evidence was produced by Balhar Singh or not, whether it was oral in nature or documentary evidence and whether it was direct evidence or of circumstantial nature. It is also unfortunate that the learned Magistrate has ignored the police report of G. Das himself and of the course of proceedings between S.S. and Balhar Singh taken at a time when Balhar Singh could not have anticipated that after years, he would be a victim of a fraud perpetrated on him to deprive him of his rightful possession. The learned Magistrate also conveniently ignored the hidden hand of the Police behind all that had happened even though it must be said in all fairness to him that he has rightly and unequivocally condemned the contention of G. Das as a "concoction" and described S.S. as an "unreliable" witness but it is extremely unfortunate that even after having completely nailed the white lies of S.S. and G. Das by confronting them with the genuine official records, he observed without any support and even conviction that both the parties were "probably" in possession of part of the property and he was, therefore, unable to decide which of the parties was in exclusive possession of the entire property on the material date. The learned Magistrate also unjustifiably demurred in ignoring unimpeachable material on record which clearly falsified the claim of G. Das and S.S. that any part of the property was outside the arrangement under which B.S. held the premises or that any part of the property could have been in the possession of G. Das before July 16, 1981. 1 would presently deal with the material to show how on the material on record, it was fully established that Balhar Singh was not only in exclusive physical possesion of the office room until 16.7.81 when he was wrongfully and forcibly dispossessed from it and of the remaining property until. the property was sealed but had been in possession of the entire property for years and was, therefore, an unfortunate victim of a fraud perpetrated oh him with the active collusion of the police officers concerned.