PATEH MOHD Vs. STATE OF U P

JUDGEMENT

(1.) This revision is directed against the judgment and order, dated 30/11/1983 passed by the then Third Additional Sessions Judge, Saharan pur, in Criminal Revision No. 358 of 1983, allowing the revision and setting aside the judgment and order, dated 14/11/1983, passed by tile then City Magistrate, Saharanpur, in Case No. 90 of 1981.

(2.) The facts, giving rise to this revision, are that Fateh Mohammad, the present applicant, moved an application before the City Magistrate, Saharanpur, on 42 1980 alleging that he was in possession as tenant of Shop No. 14/1146/1 and carried on the business of iron and tin therein. On 23/1/1980, the opposite-party No. 2, Mohammad Yasin, along with were others, Crime on his shop and attempted to occupy it forcibly. The police intervened and both the parties were taken into custody as there arose apprehension of breach of peace. Mohammad Yasin put his lock on the shop over the lock of the applicants. The Magistrate ordered the then S.O., Kotwali, to enquire and report with respect to the allegations made in the application of Fateh Mohammad. The same day, police submitted a report to the City Magistrate that there was apprehension of breach of place as Mohammad Yasin and others were out to forcibly take possession of shop No. 14/1146/1, wherein Patch Mohammad carried on the business of iron and tin. Being satisfied on the police report that there was apprehension of breach of peace due to the dispute over the possession of the said shop, the Magistrate passed a preliminary order on 15/2/1980. The parties were called upon to submit their written statement and adduce evidence with respect to possession over the said shop. The parties filed their written statement and adduced their evidence oral and documentary. The Magistrate, after considering the evidence of the parties, held that Fateh Mohammad, the present applicant was in possession over the disputed shop on the date of preliminary order and two months prior to it and directed the opposite-party No 2, Mohammad Yasin not to interfere with the possession of Fateh Mohammad over the said shop until Fateh Mohammad was evicted in due course of law.

(3.) Aggrieved by this order, Mohammad Yasin preferred a revision before the Sessions Judge, Saharanpur, who re-appreciated the whole evidence of either party, allowed the revision, set aside the aforesaid order of the Magistrate, declared Mohammad Yasin in possession over the shop and directed that his possession shall not be disturbed except in due course of law.