OM PRAKASH Vs. DHARAM CHAND

JUDGEMENT

(1.) THIS revision petition is directed against the order of learned Sessions Judge, Jammu, dated 26.11.1982 dismissing the revision petition filed by the petitioner and upholding the order of Chief Judicial Magistrate, Jammu, dated 18 -5 -1982. In this revision petition a question of law, with regard to the scope of the proceedings under section 145 Cr. P.C. during the pendency of a civil suit, was raised by a learned Single Judge and the petition together with connected Criminal Revision Petition No. 78/M were referred to a Division Bench for decision of the question of law. The Judges of the Division Bench answered the question referred to by the learned Single Judge vide their order dated 17.3.1987. The case has now been referred back for disposal in the light of the decision given by the Division Bench.

(2.) THE dispute between the parties in the case relates to the possession of House No. 143, situated in Mohalla Rehari, Jammu. The proceedings were initiated before Chief Judicial Magistrate, Jammu, under section 145 Cr. P.C. on an application of Dharam Chand (Respondent in the present petition filed on 3.2.1982, inter alia, alleging that a dispute over possession of the said house exists between the parties and there was every likelihood of breach of peace and action under section 145 Cr. P.C. was, therefore, warranted The precise plea of Dharam Chand was that on 29.12.1981, at about 1.30 p.m. Om Prakash (petitioner herein) along with many of his named associates came there and broke open the locks of two rooms in his possession, indicated in the site plan, and threw away his belongings on the road and unlawfully and forcibly dispossessed him despite the resistance put in by him and his wife. He approached the police but the police authorities also did not help him. On that application which was duly supported by an affidavit, a preliminary order was drawn up on 16.1.1982. An attachment order was also issued but the same was not carried out by the police and subsequently on 5.3.1982, the execution of that order was stayed.

(3.) THE facts of the case are clinched from, the pleadings and the evidence. According to Dharam Chand he has not been in possession of two' rooms out of this house and the other two rooms are in possession of other tenants who had attorney to him. One room had been I forcibly occupied, according to him, by Om Prakash and that on 29.12.1981, he was forcibly dispossessed by Om Prakash from the disputed property. The case of Om Prakash, on the other hand, was that Dharam Chand had voluntarily surrendered possession of two rooms under his occupation on 29.12.1981 and that the plea that he was forcibly and unlawfully dispossessed was false. The point in controversy, therefore, narrowed down to whether the surrender was voluntary or the possession was taken unlawfully and forcibly? The learned Chief Judicial Magistrate, after a detailed discussion of the evidence and the material on the record, both documentary and affidavits, returned the following finding: "So the irresistible conclusion is that the petitioner was forcibly thrown out of the premises occupied by him in order to gain upper hand in the electment suit pending disposal in which the plea of the petitioner being tenant of the non -petitioner has been categorically denied by the petitioner by setting up a title in himself." The above finding of fact was not disturbed by the first revisional court either. Both the courts found that the respondent herein had been forcibly and unlawfully dispossessed within two months next preceding the date of preliminary order and was, therefore, entitled to the restoration or retention of possession until evicted there from in due course of law.