RAJNIBEN BHAGAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Criminal Revision Application under Sec. 397 of the Code of Criminal Procedure is directed against the judgment and order dated 30.1.1996 passed by the learned Executive Magistrate, Court No. 2, Metropolitan Area, Ahmedabad in M. Case No. 8/95.

(2.) The undisputed facts are that there is a bungalow being Bungalow No. 43 situated at survey No. 150 of Shahibaug Contonment Area which was leased out to one K.U. Kavishwar and J.U. Kavishwar in the year 1932 by the Ministry of Defence. It was let out by the said Kavishwar to M/s Bombay Garage Ltd. for a period of 5 years by agreement dated 1.5.1988. On expiry of the term in the year 1988 the said agreement was not renewed. On 6.10.1995, one Rajbahadur A Pathan, watchman of Bungalow No. 43 under the control of Bombay Garage filed a FIR at police station Shahibaug stating that some persons of the opposite parties entered into the compound at 11.00 p.m. and broke open the grill and threatened to kill him and they removed the locks of the bungalow and put their locks. On this, the police registered a case being C.R. No. 255/95 for offence under Secs. 395, 148, 452 and 427 of IPC and proceeded with the investigation. The police submitted report on 16.10.1995 before the Executive Magistrate stating that since the value of the disputed property is very high, there is apprehension of breach of peace. It was thus prayed that appropriate proceedings be taken for attachment of the property. In view of this the learned Executive Magistrate drew an order under Sec. 145(1) of the CrPC and also passed an order under Sec. 146 of the CrPC for attachment of the bungalow in question. Opponents No. 1 and 2 namely; Kirtibhai U Kavishwar and Jatinbhai U Kavishawar submitted written replies stating that there was dispute among the brothers with respect to the partition of the property and in this connection, they had instituted civil suit in which the court had appointed a Receiver namely; Advocate Shri P.V. Pandit. It was also stated that the premises was let out to opponent No. 3 namely; Rajniben Bhagat for a period of five years and on expiry of the period of lease in the year 1988, the opponent No. 3 had handed over the possession of the disputed property to them. Thereafter they executed Banakhat with Yunusbhai with respect to the disputed property on 6.10.1995, who had gone to the Bungalow for removing the hedges and placing new hedges in place of it. However, allegations of quarrle and forcible possession were denied. Mr. Kirtibhai Umiyashankar also filed an affidavit on 12.12.1995 and stated that they are in actual possession of the Bungalow from the date of appointment of the Receiver.

(3.) The learned Executive Magistrate, considering the police report, written replies and the documents produced before him arrived at the conclusion that there was reason to believe that possession of the disputed property was not with opponent No. 3 (present petitioner) and the possession of the property was taken over by opponents No. 1 and 2. In arriving at the said conclusion, the learned Magistrate relied upon the fact that the period of lease expired in the year 1988. The learned Magistrate also relied upon the stastement that all payments of property tax, electricity bills etc. were made in the name opponents No. 1 and 2. In view of the finding, the learned Magistrate, by the impugned order dated 30.1.1996, revoked the order of attachment and further ordered to hand over possession to opponent No. 1. The Police Sub Inspector, Shahibaug was directed to initiate necessary proceedings in this regard and to ensure that both the parties do not disturb the peace with respect to the disputed property.