RAJESH KUMAR Vs. PREM SHANKER

JUDGEMENT

(1.) I have heard Sri Krishna Kapoor learned counsel for the appli- cants and also Sri V. C. Tev\ari, learned counsel for Prem Shanker, Gajadhar and Arya Vidya Sabha, opposite parties. I have also heard the learned counsel for the State. The above revision was admitted by this Court on 23-7-87 and the operation of the impugned order dated 22nd of May, 1987 was stayed.

(2.) IN this case, the disputed property pertains to a portion of house no. 360 situate in mohalla Kalibari, police station Baradari, District Bareilly. Applicants Rajesh Kumar, Rakesh and Rajendra Kumar filed an application on 19th June, 1986 before the City Magistrate alleging that they were in possession of the aforesaid disputed property and the respondents Prem Shanker, Gajadhar and Arya Vidya Sabha wanted to take forceful possession over the said property. The City Magistrate on the same day called for a report from the Tahsildar who entrusted the enquiry to the Naib Tahsildar who by his report dated 23rd June, 1986 reported that there was apprehension of breach of peace between the parties. On 24th June, 1986 Rajesh Kumar filed an application before the Magistrate praying that a preliminary order under section 145 (1) be passed and the property be attached. On the same day Magistrate passed the preliminary order under section 145 (1) CrPC and also passed order of attachment under section 146 (1) CrPC. The disputed property was accordingly attached and summons were sent to Tahsildar for service on the respondents. The copy of the preliminary order sent for service was returned by the Tahsildar with the following note of the process server on the back page of the notice: - "Half sey bayan karta hoon ki Sri Rajesh Kumar, Rakesh Kumar, Rajendra Kumar ko Tareekh sey soochit karkey hashtakshar kara liye gaiy va Shri Premshanker, Gajadhar, Shri J. N. Jaswant apney makan par maujood miley robakar parhaar hastakshar karney say inkar kar kiya va ek nakal robakar vivadit isthal par chaspa kar diya gaya sewame robroo gavahan report pesh hai".

(3.) THE learned Sessions Judge after hearing the parties set aside the ex-parte order dated 23-2-87 passed by the Magistrate and allowed the revision no. 62 of 1987 filed by Prem Shanker and others. THE learned Sessions Judge remanded the case back to the court of the City Magistrate for deciding afresh and the parties were directed to appear before the Magistrate on 19-6-87 to file their written statements. THE learned Sessions Judge had also directed the City Magistrate to decide the matter afresh after affording sufficient opportunity to the parties for adducing evidence. However, the learned Sessions Judge directed that the attachment of the disputed property under section 146 (1) shall continue till the pendency of the proceedings before the City Magistrate and possession of the property shall be delivered to either of the parties according to law after passing of the final order in the case. THE revision no. 82 of 1987 filed by Rajesh Kumar and others was rejected by the Sessions Judge by the same order.