HAIRAT SINGH Vs. BAHADUR SINGH

JUDGEMENT

(1.) THIS petition has been presented under Section 482 Cr. P. C. against the order dated 9th of April, 1991, passed by IIIrd Additional Sessions Judge of Vidisha in Criminal Revision No. 109/90, confirming the order of the Sub-Divisional Magistrate Kurwai dated 16th of Nov. 1990 dropping the proceedings Under Section 145 Cr. P. C.

(2.) FACTS as admitted on record are that petitioner is a mortgagee in respect of certain land from respondent No. 1 Bahadur Singh, Bahadur Singh had executed a simple mortgage deed in favour of the petitioner on 22-1-1986 against certain money borrowed by respondent No. 1. Petitioner was said to have been put in possession over the disputed land. An application was moved Under Section 145 Cr. P. C. and the Sub-Divisional Magistrate recording a preliminary finding that there was a likelihood of breach of peace attached the said property. Further inquiry was held and it was found by the learned Magistrate that the original mortgagor Bahadur Singh was only a co-sharer in the property and shares of other two co-sharers were also there and the possession was joint.

(3.) CLAIM of the petitioner that he was put in possession by mortgagor under a simple mortgage-deed was also examined and it was found that even if the possession of the petitioner was taken to have been in pursuance of the mortgage-deed, it was and could be only in respect of the share of the original mortgagor Bahadur Singh who was only a co-sharer in that property, Bahadur Singh could not deliver possession to the petitioner on the entire land beyond his share. Since shares were not defined as held by the learned Magistrate and there was joint possession of the Co-sharers, possession of the petitioner, if any. under the mortgage-deed will be deemed to be joint possession along with other two co-sharers and the petitioner had in any way stepped into the shoes of the mortgagor in so far as taking of possession in pursuance of the mortgage-deed was concerned. Since original mortgagor was only a co-sharer, possession of the petitioner would be only to the extent of the share of the mortgagor. The other two co-sharers who had not mortgaged the properly will also be deemed to be in possession along with the petitioner, and in that view of the matter, possession of the petitioner as co-sharer in respect of the mortgage-deed could not be said to be exclusive on the entire land.