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2002 DIGILAW 1393 (PNJ)

Bishan Narain Bhargava v. Madan Lal Gulati

2002-12-16

S.S.SARON

body2002
Judgment 1. The present Revision Petition has been filed by Bishan Narain Bhargava, against the order dated 24-5-1990 (Annexure P-4) passed by the learned City Magistrate, Rewari, in pursuance of which, the order of attachment passed by the Executive Magistrate, on 24-6-1988 (Annexure P-2) was withdrawn and a direction was issued to the Receiver to hand over the possession of the disputed shop to Madan Lal Gulati respondent. The said order is assailed to the extent that the possession of the disputed shop was ordered to be given to Madan Lal Gulati respondent. 2. The facts leading to the present case are that the petitioner Bishan Narain Bhargava purchased 1/3rd share of Deen Dayal Bhargava son of Raghbar Dayal Bhargava, out of the five shopping complex in various locations including one shopping complex at Ganj Bazar and another Shopping Complex at Bajaja Bazar, Rewari. Deen Dayal Bhargava was co-owner jointly with Sarvshri Uma Kant alias Hari Shankar son of Bishamber Dayal, Ram Avtar adopted son of Baseshwar Dayal Bhargava, Smt. Kirpa Rani widow of Deen Dayal Bhargava and Smt. Kaushalya Devi widow of Deen Dayal Bhargava. This sale was effected sometime in the year 1968. The possession of the shops was not given by the vendor. Consequently, the petitioner resorted to civil litigation to get possession of the share of Deen Dayal Bhargava, which he had purchased. He filed a suit for partition titled Bishan Narain Versus Uma Kant, which was decided by the learned Sub-Judge 1st Class, Rewari on 22-1-1983 and its final decree was prepared on 28-3-1984. The learned Sub-Judge 1st Class, Rewari, ordered the partition of the five shopping complexes. It was decreed that possession be given of the shops to the vendor, located at Bajaja Bazar and Ganj Bazar, Rewari. These two shopping complexes in the partition proceedings fell to the share of Deen Dayal Bhargava, the vendor. It is in consequence of the civil suit that warrants of possession in favour of the petitioner were issued by the learned Sub-Judge 1st Class, Rewari on 14-6-1988. The Warrant Officer went to the shop on 16-6-1988 in accordance with the orders of the Civil Court and with the police help possession of the shop was handed over to the decree holder Bishan Narain Bhargava petitioner. 3. The Warrant Officer went to the shop on 16-6-1988 in accordance with the orders of the Civil Court and with the police help possession of the shop was handed over to the decree holder Bishan Narain Bhargava petitioner. 3. The case of the petitioner Bishan Narain is that on the next date i.e. 17-6-1988, the respondent Madan Lal Gulati along with some other unlawful elements, trespassed and forcibly evicted him from the shop and took possession. As a result of which, the petitioner approached the police for appropriate action and the police instead of taking proper action took possession of the shop and initiated proceedings under Section 145 of the Code of Criminal Procedure (Cr.P.C. - for short). The Executive Magistrate, Rewari, issued warrants of attachment of the shopping complex on 24-6-1988 (Annexure P-2) and he also while exercising powers under Section 146 of the Cr.P.C. issued warrants of attachment of the disputed shop. The Tehsildar Revenue was appointed as Receiver on 25-6-1998. The Receiver, was authorised to take possession of the shop till the time the proceedings in the suit with regard to the possession of the shop was decided between the parties as per the Civil Court decree. Madan Lal Gulati respondent herein filed a Criminal Revision in the Court of Learned Sessions Judge, Narnaul, against the aforesaid order dated 24-6-1988 (Annexure P-2). The Revision Petition of Madan Lal Gulati respondent was accepted and the order dated 24-6-1988 passed by the learned Executive Magistrate was quashed by the learned Additional Sessions Judge, Narnaul, on 29-3-1990 (Annexure P-3) and the parties were directed to seek the necessary orders from the Civil Court as the matter was pending before the Additional Senior Sub-Judge, Rewari. It is as a consequence of quashing of the order dated 24-6-1988 that the City Magistrate, Rewari, in pursuance of the impugned order passed on 24-5-1990 ordered that the possession of the shop be given to Madan Lal Gulati respondent. As already noticed above it is said order dated 24-5-1990 (Annexure P-4) that has been assailed by the petitioner in this revision petition. Notice in the case was issued by this Court on 24-7-1990 and the operation of the impugned order dated 24-5-1990 (Annexure P-4) was stayed in the meanwhile. 4. As already noticed above it is said order dated 24-5-1990 (Annexure P-4) that has been assailed by the petitioner in this revision petition. Notice in the case was issued by this Court on 24-7-1990 and the operation of the impugned order dated 24-5-1990 (Annexure P-4) was stayed in the meanwhile. 4. When this case was taken up for hearing on 30-10-2002, Bijender Singh filed an application in this Court for impleading himself as petitioner to the Criminal Revision Petition. The application was taken on record. The Registry was asked to number the same and notice was issued to the counsel opposite for 20-11-2002. The Registry has numbered the said application as Criminal Misc. No. 46838 of 2002. Despite issuance of the notice on the said application, no reply has been filed and neither has it been opposed. In the said Criminal Misc. Application No. 46838 of 2002, Bijender Singh applicant has contended that the petitioner Bishan Narain Bhargava had sold the property to him vide sale deed dated 6-1-1993. In these circumstances, he pleaded that he be impleaded as petitioner to the present petition as he has an interest in the property being the vendee from Bishan Narain Bhargava petitioner. Since there is no opposition to the said criminal Misc. Application, the same is allowed and the applicant Bijender Singh is impleaded as petitioner in the present case. 5. I have heard the learned counsel for the parties and with their assistance gone through the records of the case. 6. The learned counsel appearing for the petitioner has contended that the order of the Civil Court in pursuance of which warrant of possession dated 14-6-1988 Annexure P-1 have been issued was liable to be complied with. Bishan Narain was given possession of the shop in pursuance of the said warrant of possession. In these circumstances, the subsequent action on the part of the City Magistrate, in pursuance of the impugned order dated 24-3-1990 Annexure P-4 ordering the Receiver to hand over the possession of the disputed shop to the respondent Madan Lal Gulati is absolutely baseless and without any substance. The case of the respondent, however, is that his father Fateh Chand Gulati was the tenant in the disputed shop from time immemorial and that he is in possession of the disputed property as tenant. The case of the respondent, however, is that his father Fateh Chand Gulati was the tenant in the disputed shop from time immemorial and that he is in possession of the disputed property as tenant. His tenancy was never terminated in accordance with law and that Bishan Narain in collusion with the Station House Officer, Police Station, Rewari, attempted to dispossess the respondent in pursuance of the collusive decree obtained by him in partition. The respondent Madan Lal Gulati was not a party to the collusive decree and the Sub-Judge could not get that decree executed against him and neither could any police help be provided to the petitioner Bishan Narain. 7. During the course of arguments, Ms. Reeta Kohli, learned counsel appearing for Bijender Singh applicant/petitioner submitted that Bijender Singh is the plaintiff in civil suit No. 105 of 1990 which has been filed for permanent injunction against the respondent Madan Lal on the ground that he is owner in possession of the disputed shop. It is pleaded in the said suit that the shop in question was allotted in partition suit No. 491 of 1979 titled Bishan Narain V/s. Uma Kant decided on 22-1-1983 by the Court of learned Sub-Judge 1st Class, Rewari and its final decree was prepared on 28-3-1984. Bishan Narain got the possession of the shop in dispute in execution proceedings on 16-6-1988. It is further pleaded therein that on 18-6-1988 Madan Lal Gulati (respondent) and one Jawahar Lal filed a civil suit titled Jawahar Lal V/s. Bishan Narain etc. for declaration and permanent injunction contending that the shop of which possession was taken was illegal and the defendants therein i.e. Bishan Narain etc. be restrained from demolishing the shop. An order of status quo was passed in the said case on 20-6-1988. Bijender Singh is the vendee from Bishan Narain. The civil suit No. 105 of 1990 was filed on 28-4-1990 for permanent injunction restraining the defendant Madan Lal (respondent) as the latter without taking orders from the civil Court on the basis of the order dated 29-3-1990 (Annexure P-3) passed by the learned Additional Sessions Judge, in the revision against proceedings under Section 145/146, Cr.P.C. was wanting to take possession of the shop in question to which he had no right. The said civil suit No. 105 of 1990 has been decreed in favour of Bijender Singh by the learned Civil Judge (Junior Division) Rewari, vide judgment and decree dated 2-12-1999. In the civil suit, it has been held that Bishan Narain was allotted the disputed shop in partition in the civil suit decided on 22-1-1983. It has also been held that the plaintiff, is the owner of the disputed shop and that he was delivered possession and that possession was delivered in execution of the decree on 16-6-1988. Besides, it has been held by the Civil Court that the defendant had entered the shop by breaking open the lock on 17-6-1988 as a trespasser. The stand of the respondent that he is the tenant of the shop in question has also been negatived by the Civil Court and it has been held that the respondent, who is the defendant in the civil suit has failed to prove that he is the tenant in the disputed shop. Findings of the Civil Court having been rendered need not be commented upon as appeal against the said judgment and decree dated 2-12-1999 is pending before the learned Additional District Judge, Rewari. 8. However, for the purposes of the present case the only limited aspect that requires to be considered is whether the City Magistrate was right in passing the impugned order dated 24-5-1990 Annexure P-4 to the extent that the possession of the disputed shop be handed over to Madan Lal Gulati respondent. As a already noticed above, the claim of the respondent is based on the ground that he has been a tenant in respect to the shop in question and earlier to him his father Shri Fateh Chand Gulati was the tenant. The finding has not been accepted by the learned civil Judge (Junior Division) in his judgment and decree dated 2-12-1999. Besides, the impugned order dated 24-5-1990 (Annexure P-4) is contrary to the order dated 29-3-1990 of the learned Additional Sessions Judge Narnaul who had while quashing the order dated 24-6-1988 of Executive Magistrate initiating proceedings under Section 145/146, Cr.P.C. had directed the parties to seek necessary orders from the Civil Court as the matter was pending before Additional Senior Sub-Judge, Rewari. The matter was indeed pending in the civil suit titled Jawahar Lal V/s. Bishan Narain etc. in which an order of status quo was passed on 20-6-1988. The matter was indeed pending in the civil suit titled Jawahar Lal V/s. Bishan Narain etc. in which an order of status quo was passed on 20-6-1988. In the circumstances the learned City Magistrate while passing the impugned order acted contrary to the directions of the learned Additional Sessions Judge. He ought to have directed the parties to get necessary orders from the Civil Court. In this view of the matter, the order 24-5-1990 cannot be sustained and is accordingly set aside and quashed to the extent that the Receiver has been directed to hand over the possession of the shop to the respondent. 9. Consequently, the Revision Petition is allowed and the order dated 24-5-1990 (Annexure P-4) of the City Magistrate is set aside to the extent that the Receiver has been directed to hand over the possession of the shop to the respondent. Criminal Misc. No. 46838 of 2002 has been allowed, the Registry to carry out the necessary correction in the array of parties and show Bijender Singh applicant also as a petitioner. 10. However, nothing stated in this order shall have any bearing on the merits of the appeal filed by Madan Lal against the judgment and decree dated 2-12-1999 passed by the learned Civil Judge (Junior Division) Rewari, which is pending before the learned Additional District Judge, Rewari. No costs.