LAWS(J&K)-1979-3-8

SHIV SARAN KUMAR Vs. CHANDER MANI MANGOTRA

Decided On March 06, 1979
Shiv Saran Kumar Appellant
V/S
Chander Mani Mangotra Respondents

JUDGEMENT

(1.) THIS is the petitioners second revision petition against the judgment of the Sessions Judge. Jammu dismissing the revision petition of the petition against the order of the C J. M. Jammu dated 19 -4 -76.

(2.) THE facts leading to the revision petition are that an application under Section 145 Cr. P.C, was moved by the respondent, herein, Chander Mani Mangotra, in the court of the C J. M. Jammu with the allegation that the plot No 76 situated at 2nd Extension area Gandhi Nagar, Jammu, was allotted to him by Government order Fo. 389 -LD dated 10 -7 -1973 and the same continued to be in possession. On 16 -4 -1975, he for the" purpose of raising construction there on collected building material but on the night intervening 21st and 22nd of April, 1975, the possession of the land was forcibly taken by the other side and they started raising construction thereon. Thereupon the respondent, alleged that there was a dispute with regard to possession of the area in question which gave rise to imminent breach of the peace on the spot. Simultaneously he also moved the police for initiating proceedings under section 447 R. P. C. The learned C. J. M. drew up the preliminary order and called upon the parties interested to put in their respective objections as respects the fact of actual possession. The land in dispute was also attached. After the process was issued Shiv Saran, the present petitioner moved an application for being impleaded as a party in the proceedings. He averred that he was in defacto possession of the property in dispute. The other respondents, who were originally on the record did not taken part in the proceedings. The contest remained between the petitioner and the respondent. The learned magistrate after holding a proper enquiry in the matter found that the respondent, herein, has established his possession over the plot No. 76 within two months next before the date of drawing up of the preliminary order and that he had been dispossessed without due process of law. He was ordered to be put back in possession. While allowing the petition the learned Magistrate observed that the respondent, herein, will continue to remain in possession until evicted in due course of law. Against the order of the C. J. M. the petitioner moved the Sessions Judge in revision who while concurring with the finding arrived at by the learned C. J. M dismissed the revision petition. Aggrieved by this, the petitioner has come up in further revision before this court.

(3.) MR Bhardwaj "appearing for the petitioner has submitted that the preliminary order is bad in law. In fact when the petitioner was impleaded as a party it was incumbent upon the magistrate to have drawn up a fresh preliminary order as time of two months would run from the date when the petitioner was made a party in the proceedings. He has also convassed the proposition that the affidavits filed by the petitioner in the application are not according to law as they lack proper verification. Moreover, the affidavits were not duly stamped inasmuch as the affidavits were not written on the stamp paper but on the separate piece of paper to which the stamp paper was appended and, therefore the affidavits are inadmissible in evidence. He has also made a complaint of the fact that in spite of the fact that an application was moved in the trial court for examining some of the witnesses in the case, the application was arbitrarily rejected. If the affidavits filed in the case were excluded, then there was no other material excepting the two letters but they would not justify the court to have drawn the conclusion that there was an apprehension of breach of peace on the spot. In fact, there was no finding of the trial court that the petitioner was dispossessed within two months next before the drawing up of the preliminary order.