BAL KRISHAN GAUR Vs. STATE OF U P

JUDGEMENT

(1.) I have heard the Counsel at length. The undisputed facts are that a partiton suit was filed interne between the landlord and his brothers. The complainant, who lodged the report and claims to be the tenant, was not a party to that suit. The suit for separating the petitioner's share from other co-owners and for delivery of possession was decreed and the execution Parwana was issued.

(2.) UNDER the relevant provisions of CPC if any other person is in possession as tenant, only symbolical possession is permissible and not the actual physical possession. The landlord concerned through the Commissioner, who proceeded to execute the decree, secured actual physical possession of the premises after removing the belongings of the complainant opposite-party, who was in occupation as tenant. A first information report was lodged by the tenant concerned alleging that the commissioner and the landlord acted hands in gloves and colluded and committed trespass over the premises in occupation of the tenant and also committed mischief by removing the properties and belongings of the tenant and causing damage to it. The investigation followed. Chargesheet was submitted by the police under Section 427 and 448, IPC. The Magistrate holding that the proceeding is barred by the provisions of Section 195, CrPC discharged the accused. The tenant-complainant filed a revision. The revisional court quashed the order of the Magistrate and directed that the case should proceed against the petitioner under Sections 427 and 448, IPC.

(3.) INHERENT powers are exercised to serve the ends of justice and not to defeat it or encourage it. The recital of facts in the judgment of the revisional court would show that as far back as ly76 the landlord moved on application under Section 21 of the Rent Control Act for securing vacation of the premises. While the Prescribed Authority allowed the prayer, that order was set aside by the appellate court and the application was rejected. A writ petition is now pending before the High Court. In 1982, without impleading the tenant, a suit was brought between the landlord and the other co-sharers interse and then a compromise decree was obtained and in this back ground and context the tenant has been thrown out of this premises. When that is the position, this Court will not interfere in exercise of its inherent powers.