MANOHAR CHATURVEDI Vs. RAMANJI CHATURVEDI

JUDGEMENT

(1.) SRI Manohar Chaturvedi, the petitioner, has preferred this revision against the judgment and order dated 6th January, 1988 of the City Magistrate, Mathura, for dropping the proceedings under section 145 CrPC.

(2.) THE facts of the case in brief are that the property in dispute is a temple of Sri Dau Ji Maharaj along with a Gaushala in Mohalla Satagharah of Mathura city which were in existence for the last 75 years. In this revision it is alleged that Sri Gullu Chaube, grand father of the revisionist was the Mutawalli of the said temple and he looked after it till his death in about 1930. THEreafter the present revisionist, though he was only a child became its Mutawalli and has been in continuous and uninterrupted possession for the last 57 years. It is further alleged in this revision that the revisionist in his capacity as Mutawalli and manager of the temple property, appointed Sri Bamanji as a Pujari and his agent for performance" of Pooja etc. and looking after his affairs ia his absence, that in the year 1980 the revisionist retired from the Indian Police Service and then he came to know that the respondents had caused extensive mis-use and damage to the property in dispute and had converted the temple into their own residence and started indulging in orgy of various crimes, that they had also broken the locks of the Toshakhana and other rooms which were in possession of the revisionist, hence he lodged a first information report in the Kotwali at Mathura on 26-5-1985 and also moved an application under section 145 CrPC on 6th July, 1985. THE Magistrate on receipt of report from P. S. Kotwali Mathura passed the preliminary order under section 145 CrPC on 17-7-1985 and also passed an order under section 146 (1) CrPC to attach the property. THE opposite party no. 3 had however also moved an application on 17-7-1985 itself opposing passing of any ex-parte order under section 146 (1) CrPC without giving the opposite parties an opportunity of being heard. In that application Sri Chhotey Lal opposite party no. 3 had specifically alleged that he and his father Bamanji Chaturvedi opposite party no. 1 and their family were residing for the last over 30 years while the petitioner was living out of Mathura and had his own residence at Gokhle Marg, Lucknow acd was living there after his retirement, that the opposite parties had their ration card and names in the voters list for the last over 30 years and their children's address in the school was also recorded as that of the property in dispute. THE learned Magistrate instead of postponing the attachment of the property under section 146 (1) CrPC passed order thereunder and the Magistrate called for report from P. S. Kotwali on the application of the opposite party. THE revision against the order under Sec. 146 (1) CrPC however was also rejected and ultimately on 18-11-1984 by the impugned order the learned Magistrate quashed the proceedings and directed the Supurdar to handover back the possession to the party from whose possession it was taken. He had further ordered that after the quashing of the proceedings if there was any apprehension of breach of peace then proceedings under section 107/116 CrPC may be taken by the police.

(3.) ON behalf of the petitioner a plethora of rulings have been cited. All those rulings need not be quoted. However, on behalf of the revisionist much reliance has been placed on the decision of the Honourable Supreme Court in the case of R. H. Bhutani v. Miss Mani J. Desai, 1969 AWR 59. In brief the facts of that case were that all material times Miss Mani J. Desai bad her office premises in the Nawab Building, Fart, Bombay which consisted ot two cabins. ON July 10, 1964, she entered into an agreement with the appellant permitting him to occupy one of the cabins on leave and licence for a period eleven months. Subsequently the agreement was extended for a further period of eleven months. According to the appellant it was further extended for another eleven months from May 10, 1966, respondent no 1 accepted Rs. 450/- as compensation for May 1966. Respondent no. 1 thereafter demanded higher compensation which the appellant refused to pay and, therefore, the respondents refused to execute the renewal and threatened to eject him forcibly if he did not vacate. It was further alleged that on June 11, 1966 Mani J. Desai, respondent no. 1 broke open the staple of the cabin, removed the door from its hinges, removed all his belongings lying in the cabin and dumped them in the passage outside. She then handed over possession of the cabin to respondents nos. 2 and 3 purporting to do so under an agreement of licence dt. June 1, 1966. The appellant therefore went to the police stallion, but the police refused to take action and only recorded non cognizable complaint. From the police station he and his friend returned to the cabin, when on their demanding possession of the cabin, the respondent attacked them. Thereafter again the matter was reported to the police which again refused! to oblige by taking any action except recording another non cognizable complaint. Due to the persistent refusal by the police to help him to get back the cabin, the appellant approached higher authorities. Thus there was every material of breach of peace and therefore the appellant filed a complaint before the Additional Chief Presidency Magistrate under section 145 CrPC. Thereafter the parties filed affidavits. In the meantime respondent no. 1 filed suit in the City Civil Court and tookout a notice of motion for restraining the appellant from interfering with her possession of the cabin. The court dismissed the notice of motion refusing to rely on the said agreement. The main question before the Magistrate was whether the appellant was in actual possession on June 11, 1966 and whether he was forcibly and wrongfully dispossessed by respondent no. 1 or whether he had vacated and surrendered the cabin to respondent no. 1. It was however admitted in her written statement that though she had not renewed for the second time the licence in May 1966 but at the request of the appellant she had permitted him to continue in possession till May 1966 on his promising to vacate it by the end of that month and that on 11th June, 1966 the appellant vacated the cabin. The Magistrate held that the appellant was in actual possession on 11th June 1966 and she was dispossessed within two months from the date of the passing of the preliminary order, he directed the restoration of the possession to the appellant. The revision was preferred before the Honourable court of Bombay. The High Court allowed the revision. ON being aggrieved the appellant had approached the Honourable Supreme Court, thereupon their Lordship made the following observations :