BANWARI LAL Vs. RAJWARI

JUDGEMENT

(1.) R. K. Agarwal, J. This revision has been filed against the order dated 6-8-1984 passed by VII Additional District Judge, Buland Shaher allowing the revision and setting aside the order of the learned Magistrate passed on 26- 5-1964. The dispute between the parties is regarding a shop. The opposite party Smt. Rajwari is the land lady of the shop in dispute and revisionist Banwari Lal claims herself to be the tenant of the said shop on Rs. 55/- per month. The land lady however, on 13-5-1978 moved an application for initiating the proceeding under Section 145, Cr. P. C. Police report was filed on 1-6-1978 and preliminary order was passed on 2-6-1978. The learned Magistrate attached the property under Section 146, Cr. P. C. on 2 -11- 1978. Thereafter the present revisionist, Banwari Lal filed civil suit for restraining the opposite party, Smt. Rajwari from taking possession of the shop in question. The said suit was decreed on 9-8-1980. The first Appeal No. 382 of 1980 was filed and the same was allowed by the First Additional District Judge on 30-1-1981. Second Appeal against the said judgment is pending in this Court. Alter the First Appeal allowed the learned Magistrate on 19-10-1981 released the shop in question in favour of Smt. Rajwari. Its revision was however, allowed and the case was remanded back to the learned Magistrate and learned Magistrate on 26-5-1984 drop to the proceed ings under Section 145, Cr. P. C. holding that there was no apprehension of breach of peace and the shop in question be released in favour of the person from whom the possession was taken. Opposite party, Smt Rajwari filed revision No. 237 of 1984 before the Sessions Judge allowed the revision on 6-8-1984 and directed lady, Smt. Rajwari. This revision has been filed against the said order dated 6-8-1984.

(2.) I have heard the learned Counsel for the parties at length. The case of the revisionist (who claims to be the tenant of the shop in dispute) is that he entered in the possession of the shop in dispute in 1971 as tenant of Smt. Rajwari on payment of Rs. 55/-per month and that he was paying the rent for the same. There was no order of allotment of the shop in question as required under the Rent Control Act and it appears that on that account some dispute arose between the parties which gave rise to proceeding under Section 145, Cr. P. C. The learned Counsel for the petitioner contended that in view of Section 14 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 he became the statutory tenant as he was allowed by the land lady to occupy the shop in question. In the proceeding under Section 145, Cr. P. C. the court has not to see the cut'tlement of any person to remain in possession over the property in dispute. It has to be seen as to which party was in actual and physical possession of the property in dispute two months prior to the passing of the preliminary order. In the case from the judgment of the First Appeallate Court in Civil Appeal No. 382 of 1980, it transpires that the present revisionist was in actual physical possessions in the shop in question since long and much before the passing of the preliminary order. The civil suit however, was dismissed by the First Appellate Court on the ground that the possession of Banwari Lal was not with the consent of the land lady and therefore, he could not take the benefit of Section 14 of the said Act. The fact however, remain that present revisionist, Banwari Lal was in actual and physical possession of the shop in question since long and that the opposite party, the land lady was not in actual physical possession within two months prior to the passing of the preliminary orders. Apart from this since second appeal is pending in this Court and the appeal is a continuation of the suit, it cannot be at this stage said that the right of the parties have been finally adjudicated upon between the parties. The learned Magistrate was therefore, justified in dropping the proceeding under Section 145, Cr. P. C. and also given direction that the property in question be delivered to the person from whose possession the same was taken. The learned Session Judge was not justified in interfering in the said order of the learned Magistrate. Revision must therefore, be amowed and the order dated 26-5-1984 passed by learned Magistrate be maintained. Revision allowed. The order dated 6-8-1984 passed by VII Additional District Judge, Bulandshahar in Revision No. 237 of 1984 is set aside and the order dated 26-5-1984 passed by Sri R. B. Maurya, City Magistrate is maintained. Revision allowed. .