GHULAM HASSAN MUTOO Vs. TEHSILDAR

JUDGEMENT

(1.) Petitioner presented an application in terms of section 145 Code of Criminal Procedure (for short Cr.P.C.) before the Chief Judicial Magistrate, Srinagar for drawing proceedings in terms of the said mandate of law and also to attach the property mentioned in the said petition, was transferred to Judicial Magistrate (Judge Small Causes), Srinagar and vide order dated 6.12.2006 preliminary order was drawn and parties were directed to put up their respective written statements of claims along with documents in their support. Trial court after considering the entire material vide order dated 17.03.2007 submitted the case to the Court of Principal District Judge, Srinagar in terms of section 146 Cr.P.C. Respondents 4 to 7 assailed said order dated 17.03.2007 by the medium of revision petition before the Court of Principal Sessions Judge, Srinagar, was transferred to Additional District & Session Judge, Srinagar. Revision petition came to be allowed and the entire proceedings, i.e., drawing of preliminary order and subsequent order came to be set aside vide order dated 31.03.2010. Feeling aggrieved the petitioner has questioned the same by the medium of this petition on the grounds taken in it.

(2.) Revisional Court held that neither the petitioner herein was in possession at the time of filing of the application under section 145 Cr.P.C. nor was in possession even two months prior to it in terms of section 145(1) Cr.P.C., further held that the trial court had no jurisdiction in view of the admission made by the petitioner in main petition under section 145 Cr.P.C. It further held that already suit was pending between the parties, thus the application under section 145 Cr.P.C. was not maintainable. It is apt to reproduce relevant portion of para 2 and 4 of the main application filed by the petitioner under section 145 Cr.P.C. herein.

(3.) While going through the said pleadings petitioner had admitted that the property is unpartitioned, meaning thereby it is still joint.