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2000 DIGILAW 694 (DEL)

BHAGWAN DEVI v. AMIR CHAND

2000-08-21

R.S.SODHI

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R. S. Sodhi ( 1 ) BY this petition the petitioner challenged the order of the Additional Sessions Judge dated 16. 1. 1995 whereby the learned Additional Sessions Judge has, after due consideration, upheld the proceedings of the S. D. M. dated 27. 7. 1989 under Section 145 of the Code of Criminal Procedure (for short the Code ) initiated at the behest of Amir Chand. ( 2 ) BRIEF facts of the case are that Amir Chand had purchased property - plot No. 27/34, Gali No. 9, Viswas Nagar on 10. 12. 1959 from the Managing Officer of Acquired Evacuee Property in an auction. This plot was trespassed upon by Hazari Lal and Prakash Chand. Amir Chand filed a suit for possession against Hazari Lal and Prakash Chand in the year 1971 which was contested by both the persons. The suit was decreed in favour of Amir Chand on 27. 11. 1975. Hazari Lal and Prakash Chand filed an appeal before the Additional District and Sessions Judge, Delhi, which was dismissed. ( 3 ) ON 16. 2. 1976 proceedings for Execution of the decree were initiated by the decree-holder against Prakash Chand, Suraj and Sohan Lal upon which possession of the plot No. 27/34, Gali No. 9 Viswas Nagar was handed over to the decree-holder, Amir Chand, on 27. 5. 1991 by the Bailif with the aid of police. After two days of handing over of the possession, locks were broken open and the property was again tresspassed by Hazari Lal and Prakash Chand. It then gave rise to proceedings under Section 145 of the Code in which the SDM upheld the ownership/possession of Amir Chand over Plot No. 27/34, Gali No. 9 Viswas Nagar and possession handed over. Bhagwan Devi made an application for being impleaded as party during the pendency of the proceedings. She stated that she was the actual owner of the property in question by way of adverse possession and her title and become absolute by lapse of time and the respondents, Hazari Lal and Prakash Chand, were, in fact, her tenants. She pleaded that in a rent suit she had got possession of the premises from Hazari Lal and Prakash Chand and, therefore, further pleaded that the order passed by the SDM 1 based on the judgment obtained by Amir Chand from the Civil Court was bad. She pleaded that in a rent suit she had got possession of the premises from Hazari Lal and Prakash Chand and, therefore, further pleaded that the order passed by the SDM 1 based on the judgment obtained by Amir Chand from the Civil Court was bad. The learned Magistrate, upon a kalandra being filed, proceeded under Section 145 (1) of the Code and passed an order dated 18. 8. 1981 and attached the premises by an order dated 26. 8. 1981 and directed possession to be handed over to Amir Chand. ( 4 ) THIS order was challenged in the Court of the Additional Sessions Judge, Shahdara, by way of Criminal Revision No. 35 of 1981. The learned Additional Sessions Judge upon careful study of the material available on record returned finding which reads as follows: "this case is an example as to how a lawful owner of the property can be deprived of the fruits of his hard earned money at the hands of property grabbers. The property was purchased by Amir Chand in Government Auc- tion. First it was tress-passed by Prakash Chand and others. It took 10 years to. Amir Chand to get the possession of the property from the tress-passers. After he got the possession of the property through a lawful decree under the orders of the Court, he was against dispossessed by some persons and again proceedings under Section 145 Cr. P. C. started. Proceedings under Section 145 Cr. P. C. should have been out-rightly thrown away by SDM and the police should have been given directions to restore the possession as per the orders of Civil Court. The report of the SHO in this case, is an eye opener. SHO, in his statement has stated that possession of property was handed over to Amir Chand under the orders of Civil Court with the help of police in execution of a decree and just after two years, it was again tress- passed by same persons. The Duty of the SHO was to throw-out the tress- passers when there was a clear cut decree of the Civil Court, but in stead of throwing-out the tress-passers, who were bent upon committing illegal act and crime, the SHO conveniently forwarded a Kalandera under Section 145 Cr. The Duty of the SHO was to throw-out the tress- passers when there was a clear cut decree of the Civil Court, but in stead of throwing-out the tress-passers, who were bent upon committing illegal act and crime, the SHO conveniently forwarded a Kalandera under Section 145 Cr. P. C. SDM who was appraised of the decree of the Civil Court, should not have attached the property, but should have immediately ordered for handing over of the property to the lawful owner. Police and sate machinery are there to see that the legal rights of the people are. up-held They cannot become instruments to perpetuate illegality. Proceedings under Section 145 Cr. P. C. cannot be allowed to be a tool for perpetuating injustice. Where the Civil Court has decided the rights and passed a decree for possession, the SDM cannot order to seal the premises. The only order, that SDM can pass in such cases, is to restore the possession immediately with the help of police to the lawful owner in whose favour the Civil Court has a passed a decree. If tress-passers can harvest the fruits of their criminal acts for years together and are successful in keeping the possession of the premises with them by their acts of tress-passing for So long, it puts premium upon criminal acts, encouraging criminality in the society. I, therefore, consider that proceedings in this case have unnecessary dragged for about 15 years, after the initiation of proceedings under Section 145 Cr. P. C. Had the SDM taken steps in the right direction, and-ordered the SHO to restore the possession immediately to the lawful owner and not to forward the Kalandera under Section 145 Cr. P. C. , when the dispute of ownership had been decided by the Civil Court, the lawful owner would not have got harassed in the courts for so long. I consider that the order of SDM Ansu Prakash dated 29. 9. 89, is just an illegal order. There is no infirmity in the order. All the documents filed by Bhagwan Devi show that she wanted to grab the property by maneouring and by restoring to procuring exparte orders and by collusive suits, filed by her. I therefore, hereby dismiss this revision. I consider that revision petitioner should pay the cost of these proceedings. The cost is fixed at Rs. 2,000. 00. All the documents filed by Bhagwan Devi show that she wanted to grab the property by maneouring and by restoring to procuring exparte orders and by collusive suits, filed by her. I therefore, hereby dismiss this revision. I consider that revision petitioner should pay the cost of these proceedings. The cost is fixed at Rs. 2,000. 00. She is directed to deposit the cost within one week, Therewise the same shall be recovered as penalty. The SHO, P. S. Vivek Vihar, is directed to deposit the cost within one week, otherwise the same shall be recovered as penalty. The SHO, P. S. Vivek Vihar is directed to handover the possession of property No. 27/34, Gali No. 9 Vishwas Nagar, to Amir Chand immediately forthwith by unsealing the premises (if it is sealed) and (if there is lock of any one), by breaking upon the lock. The report of the SHO of compliance of this order be sent to this court by the SHO, by 18th January, 1995. " ( 4 ) IT is this order dated 1. 6. 1995 which is sought to be challenged before me on the ground that the SDM has not completed the proceedings under Section 145 (4) before passing an order under Section 146. Except for a bald challenge before me, the learned counsel has not been able to show any perversity in the order of the learned Additional Sessions Judge Dated 1. 6. 1995. ( 5 ) I have carefully gone through the material on record and I find no ground on which the order of the Additional Sessions Judge dated 1. 6. 1995 can be faulted with. In this view of the matter. I uphold the judgment and order dated 1. 6. 1995 of the learned Additional Sessions Judge and dismiss Criminal Misc. (Main) 1586 of 1995. The lower court record be sent back forthwith.