BIRVATI DEVI Vs. COURT OF CIVIL JUDGE DELHI

JUDGEMENT

(1.) Petitioners are aggrieved by the findings rendered vide the impugned order by the Civil Judge, Delhi. She passed the decree of possession of the land in dispute in favour of the respondents. She not only held that respondents were in possession two months prior to dispute but also directed that possession of the disputed plot be handed over to party No. 1. It is against this order that this petition has been filed challenging the impugned order primarily on the grounds that under Section 145 (1) Cr.P.C., as it stood prior to the amendment, the Civil Judge was only to submit its report after holding enquiry. The Civil Court had no power to pass a decree of possession. Hence, the impugned order is bad as the Civil Court has passed the decree of possession. Even otherwise by the impugned order the Civil Court has ignored the evidence of material witnesses. She attached no relevance to revenue record rather discarded the same without assigning any reason and finally the Court though admitted that there was no certainty as to where the "Kutia" was located because that plot could not be ascertained even after recording the evidence, thus her findings were based on conjucture and surmises.

(2.) In order to appreciate these contentions raised by the petitioners, the brief facts of the case are that Baba Budh Nath (hereinafter called Babaji) was having his "Kutia" (Hutment) on a plot of land. Babaji died. After his death both the parties, namely, party No. 1 consisting of Sh.Girdhari Singh and Sh.Khem Raj and party No.2 consisting of Sh.Kanshi Ram and Sh.Prem Raj and thereafter legal heirs of party No. 2 claimed that they were in actual possession of the "Kutia" and the land underneath after the death of the Babaji .According to them the "Kutia" was built on their land. Since there was dispute which caused breach of peace hence the S.H.O., Police Station Roshnara filed a Calandera. On Calandera being submitted the SDM took cognizance under Section 145, Cr.P.C. It was necessary for him to determine the fact of the possession of either party over the disputed land. parties produced their respective evidence by way of documents and affidavits before him. But the SDM on the basis of that evidence could not come to a definite finding as to which of the parties was in actual physical possession of the disputed land as on 17th December, 1970. He, therefore, referred the matter to the Civil Court under Section 146 (1) Cr.P.C. (pre amended).

(3.) Before the Civil Judge, parties No. I and party No.2 examined their respective witnesses. Party No.l examined as many as five witnesses namely S/Sh.Gokal Singh (P1W1), Karan Chand (P1W2), Goverdhan (PlW3), S.K.Dabas (P1W4), Advocate and Girdhari Lal (P1W5). Party No.2 examined as many as 8 witnesses namely S/Sh.Prem Raj (P2W1), Mahinder Pratap (P2W2), Halka Patwari (P2W3), Bhagwan Dass (P2W4), Anand Singh (P2W5), Record Keeper Faquir Chand (P2W6), Dev Raj Kapoor (P2W7), A.A.Khan (P2W8), Devender Prakash (P2W9), Patwari Halka.