MANOHAR SATRAMDAS AGICHA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition by the accused in Criminal Case No. 544/s of 1985 pending in the Court of the learned Metropolitan Magistrate, 13th Court, Bhoiwada, Dadar, Bombay, is for stay of the proceedings. , The charge is principally of criminal trespass on a terrace to which the Respondent/complainant and the Petitioners/accused claim title.

(2.) THE following facts may be taken to be undisputed: The Petitioners, Thereinafter referred to as the accused, are the owners of a building known as Agicha House Wadala, Bombay. The building consists of FOUR floors. There are two flats on each floor. Adjoining each flat, there is a terrace. Admittedly, the terrace has two entrances one is from the passage of the suit flat. The second is from outside from the landing which is not part of the flat. The second entrance had a lock, the only key of which was always with the accused. The Complainant purchased from the accused the flat on the 3rd floor. The agreement of sale is dated 4th September 1978. The recitals describe the property as a flat on the third floor- admeasuring about 800 sq. ft. This description of the flat is qualified by the words shown in red in the plan annexed hereto; The case of the accused is that the plan did not at the time of execution have the lineation2 in red and the original agreement delivered to the Complainant did not have the red delineation3. The accused who always claimed that they had not sold the terrace but only the flat noticed, that the Complainant was carrying building material to his flat. The Complainant latched the terrace door from inside. Since the accused apprehended that the Complainant was likely to construct on the terrace they wanted to enter the terrace. The Complainant refused to unlatch the door providing entrance into the terrace from outside from where the accused had the entry into the terrace. This incident occurred on 10-3-1985. The police considered it to be a civil dispute and registered N. C. complaints at the instance of the rival parties. Therefore, the Complainant decided to agitate his right to the terrace as a civil right and filed Suit No. 1565 of 1985 in the Bombay City Civil Court. Suit is based on two averments4.

(3.) IN the first place, it is necessary to understand what the Bombay City Civil Court in Suit No. 1565 of 1985 and the Criminal Court in Case No. 544/s of 1985 are called upon to decide. The Criminal Court is primarily required to decide whether the Complainant was in possession on 10-3-1985. The Complainant bases his case on the document of sale dated 4-9-1978. The offence of trespass being an offence against possession, the Criminal Court cannot decide the complaint without holding that either of the parties was in possession. The Civil Court which is called upon to grant the injunction is required to adjudicate upon the same question. Without adjudicating upon whether the Complainant was in possession, it cannot make the decree for injunction. For the purpose of such adjudication, it will consider the effect of possession of the key of latch by the accused, why the Complainant had to latch the terrace from inside, the effect of the separate entrance which the accused used and other evidence. On a totality of these considerations, there is no doubt that the learned Magistrate and the Bombay City Civil Court are about to decide the same question.