SANTUMAL ASSUDOMAL GOGIA Vs. SUB-DIVISIONAL MAGISTRATE, ULHASNAGAR

JUDGEMENT

(1.) Brief facts leading for filing the present petition are as under:-

(2.) It is the case of the petitioner that the respondent no. 4 before respondent no. 1 stated that, he is the owner since he has purchased said property from one Gopaldas Uttamchandani, who is permanently settled at Mumbai. It is submitted that the possession of the suit property be given to him. It is further submitted that the proceeding was heard by the Magistrate, and he had observed in his order that, the parties claiming possession by their documents and without recording finding of possession or without giving any finding in respect of breach of peace directed to handover possession to respondent no. 4. It is submitted that while passing the order annexed at Exhibit-C to the present petition, the respondent no. 1 exercised powers under Section 145 of the Code of Criminal Procedure, and directed to hand over possession of the disputed property to respondent no. 4. It is the further case of the petitioner that petitioner filed criminal revision application no. 41 of 2002 before the Sessions Court at Kalyan and Challenged the order of Respondent No. 1. By way of revision, the petitioner challenged the order of Respondent no. 1 on the ground that the Magistrate has no jurisdiction to pass an order under Section 145 Cr.PC, as there is no finding about breach of peace due to dispossession of the complainant from the suit land. Nor there is any allegation of dispossession at the hands of the respondent no. 1 within a period of two months from the report of concerned police station as required under Section 145 of Cr.PC.

(3.) It is the case of the petitioner that the Revision was heard by the 1st Ad-hoc Additional Sessions Judge, Kalyan and by his order dated 11.3.2004, dismissed the Revision and confirmed the order of respondent no. 1. In the judgment, the Revisional Court has held that the order of respondent no. 1 is legal, proper and correct. The Revisional Court also held that, there is no title or occupancy right of the disputed property of Chetandas Makhija nor the probate of will of Jassibai was issued. Therefore, the Revisional Court found that the Magistrate may restore the possession under Section 145 (6) of Cr.PC, and further held that the order of the Magistrate is proper.