BAIJ NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioners have challenged the order dated 18.05.1995 passed by the Sub-Divisional Magistrate, whereby the learned Magistrate had held the possession of the property in dispute was with non-petitioner No. 2. Therefore, the possession should be restored to him. The petitioners have also challenged the order dated 30.07.2001 passed by the Additional Sessions Judge No. 1, Chittorgarh whereby he has dismissed revision petition filed by the petitioner challenging the order dated 18.05.1995.

(2.) Although, this case has a checkered history, but suffice it to say that according to the petitioner, he had purchased a "Nohra" (courtyard alongwith a number of rooms) through Court auction in the year 1955 through a considered sale-deed. The said premises were rented out in 1962. However, as the tenant did not make the payment the rent, the petitioner went to the Civil Judge Chittorgarh in the civil suit, the petitioner's father Ramchandra had clearly stated that the premises were brought by the petitioner. Eventually, the said suit was decreed in favour of the petitioner. According to the petitioner, right next to the said "Nohra", there is an ancestral house of his family. His brother, Devkinandan, non-petitioner No. 2 were interested in illegally taking over the property as well as in taking over the "Nohra". Because of the property dispute that began between the two brothers, non-petitioner No. 3 filed an application before the SHO, Police Station, Kotwali, Chittorgarh on 12.10.1985. Subsequently, on 28.10.1985 the SHO filed a complaint under Section 145 CrPC against the petitioner and the Non-Petitioners No. 2 and 3. Meanwhile, the petitioner I filed a civil suit for permanent injunction against the Non-Petitioners No. 2 and 3 in the Court of Munsif and Judicial Magistrate, Chittorgarh with regard to the same property. In the civil suit, the Non-Petitioners No. 2 and 3 had filed an application under Order 39 Rules 1 and 2 CPC for granting injunction in their favour. However, the learned Magistrate rejected the said application and held that prima facie "Nohra" was the petitioner's property and, therefore, he should not be stopped from raising a construction. Meanwhile, the learned S.D.M. vide order dated 18.5.1995 after recording the evidence concluded that two months prior to the application under Section 145 CrPC, the possession of "Nohra" was with Non-Petitioners No. 2 and 3 and, therefore, directed that the possession be handed over by the petitioner to the non-petitioner No. 2 and 3. Since, the petitioner was aggrieved by the said order, he filed a revision petition before the Sessions Judge. The Learned Sessions Judge was pleased to transfer the case to the Additional Sessions Judge No. 2, who vide his order dated 30.07.2001 upheld the order passed by the Sub-Divisional Magistrate and dismissed the revision petition. Hence, this miscellaneous petition before us.

(3.) Mr. Vineet Jain, the learned Counsel for the petitioner has submitted that the 'civil suit which was filed by the petitioner has been decided in favour of the petitioner vide judgement dated 18.11.2002. The learned Civil Judge has passed an order of permanent injunction.restraining the Non-Petitioners No. 2 and 3 from interfering in the petitioner's peaceful possession of "Nohra". He has placed the said judgment before us.