GIRDHARI LAL Vs. REMI BAIRAGI

JUDGEMENT

(1.) This is the second revision filed by the petitioner challenging the rejection of his application under Sec. 145 Cr. P.C. His application was dismissed by the Magistrate on finding that he had failed to prove the possession of the subject of dispute. The learned Sessions Judge concurred rejecting his first revision petition by an elaborate order though on a different reasoning. The matter has in the process thrown up an interesting question for determination viz : Whether the trial magistrate can assume jurisdiction under Sec. 145 Cr. P.C. on the application of a party who is not in "actual possession" of the subject of dispute ?

(2.) Petitioner's case was that his uncle, Lachhman Singh, happened to be the tenant of a shop owned by Mandir Satyanarayan Ji at panjtirthi, Jammu and let out to him by Mahant Ram Rattan, the manager of the diety. Lachhman Singh, a bachelor, died on 17-12-1993 and though he was to carry on the business in the shop, he could not do so on account of the death of two sisters of his father. In the meanwhile respondents broke open into the shop on 19-4-1993 and took forcible possession of the goods lying therein with the help of goondas.

(3.) The Magistrate after framing preliminary order and perusal of the evidence led by the parties concluded that the petitioner had failed to prove his possession of the shop and dismissed his application. The Sessions Judge upheld the rejection but went a step further ruling that since he was not in "actual possession" of the shop and was only agitating his right of possession, the Magistrate had no jurisdiction to proceed with his application.