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2007 DIGILAW 181 (DEL)

S. K. CHATUR VEDI v. STATE OF DELHI

2007-01-25

A.K.SIKRI

body2007
JUDGMENT A.K. Sikri, J.- The SHO of Police Station Krishna Nagar sent a Kalandra under Sections 145 and 146 of the Code of Criminal Procedure. 1973 (for short, Cr.P.C.) alleging therein that there was a dispute among the parties herein over the possession of a shop bearing No. 741. Jheel Khuranja, Delhi - 110051. After receiving this Kalandra, the learned Sub-Divisional Magistrate decided to proceed under Section 145. Cr.P.C., prima facie satisfying himself that there was every likelihood of breach of peace between the parties over the possession of the said shop. On 1.1.1996, preliminary order under Section 145(1). Cr.P.C. was passed and the parties were directed to put in their written statements and documentary proof regarding the actual possession of the shop in dispute. Attachment order under Section 146(1), Cr.P.C. was also passed on that date by which the SHO, P.S. Krishna Nagar was directed to attach the said property. Thereafter, the learned SDM proceeded to adjudicate the dispute and passed final order dated 3.2.2004 vide which he directed the SHO to open the seal and hand over the vacant possession of the property in question to Shri Gulshan Dhamija (respondent No.2 herein). While giving this direction, the SDM came to the conclusion that the petitioner herein was not in possession of the disputed property either at the time of attachment or within two months next before the date on which the Kalandra was sent by the SHO or prior to when the said property was sealed by the orders of the SDM. On the other hand, Shri Gulshan Dhamija was able to prove his possession. The petitioner herein filed revision petition before the learned Addl. Sessions Judge, Karkardooma Courts. Delhi, challenging the aforesaid order of the SDM and the learned ASJ has dismissed this revision petition by a detailed judgment dated 10.10.2006. Impugning this judgment, the present petition under Section 482, Cr.P.C. is filed. 2. Case of the petitioner is that prior to 31.12.1995, one Rani Bai was the tenant of Phool Singh in two shops out of property No. 736/2 and a Hall above the shops. She was tenant since 1992 and became so after the death of her husband. She vacated the premises on 31.12.1995 and cleared the rent arrears of the landlord Phool Singh. The petitioner at that time was residing in the adjoining house No. 736/3. She was tenant since 1992 and became so after the death of her husband. She vacated the premises on 31.12.1995 and cleared the rent arrears of the landlord Phool Singh. The petitioner at that time was residing in the adjoining house No. 736/3. On vacating the premises by Rani Bai, the petitioner took the said premises "i on rent from Phool Singh at a monthly rent of Rs. 3,000/- with effect from 1.1.1996. The petitioner is an Advocate by profession and he alleges that the premises were taken by him for his chamber and residence above the chamber. He also paid Rs. 72,000/- as advance rent for two years and took possession of the disputed property on 1.1.1996. After getting the property whitewashed, he inaugurated his chamber on 3.1.1996 and at that time his friends and other Advocates also were present. On 4.1.1996, Gulshan Dhamija/respondent No.2 lodged FIR No. 6/1 996 with P.S. Krishna Nagar under Sections 448/380. IPC alleging that he was in possession of the shop and in the night intervening 3/4.1.1996. the petitioner broke open the locks and took forcible possession of the disputed property. Police found the allegations in the FIR to be false, but forwarded the Kalandra under Section 145. Cr.P.C. before the SDM wherein three landlords were made parties, but the petitioner was not added as a party though he was in possession. It is also alleged by the petitioner that Rani Bai is the aunt (Tai) of the respondent No.2 and the respondent No.2 was compelling Rani Bai to hand over the vacant possession to him, but instead of giving possession to the respondent No.2. Rani Bai had handed over the possession to the landlord Phool Singh and it is the landlord who inducted the petitioner as tenant. 3. Before coming to the grounds on which the impugned orders passed by the Courts below are challenged, it would be appropriate to go though the order of the learned ASJ, with which the order of learned SDM has merged. to find out the reasons which persuaded the learned ASJ to confirm the orders passed by the SDM and dismiss the revision petition of the petitioner herein. 4. Perusal of the order dated 10.10.2006 passed by the learned ASJ would reveal that entire evidence recorded before the learned SDM has been scanned through and analysed by the learned ASJ. to find out the reasons which persuaded the learned ASJ to confirm the orders passed by the SDM and dismiss the revision petition of the petitioner herein. 4. Perusal of the order dated 10.10.2006 passed by the learned ASJ would reveal that entire evidence recorded before the learned SDM has been scanned through and analysed by the learned ASJ. He went into the depositions of the witnesses examined by Shri Gulshan Dhamija as well as the depositions of the witnesses produced by the petitioner and all these depositions are discussed from para 2 to para 19 of the judgment. After taking note of these depositions, the learned ASJ found that the main dispute was regarding the premises number of the premises in question. He noted that according to the petitioners own case, it is property No. 736/2 which was given to him on rent, whereas the dispute was as to whether the property which was sealed was property No. 736/2 or shop No. 741 in the said building. On the basis of evidence on record, he came to the conclusion that the property which was actually sealed and is the subject matter of dispute is property No. 741 and not 736/2 and, therefore, it could not be said that the petitioner was in possession of the disputed property as his case related only to property No. 736/2. This is clear from the following portion of the judgment of the learned ASJ: "20. The main dispute is regarding the premises number of the disputed premises. The proceedings in respect of the same property had reached before Honble High Court in the form of Crl. Misc. (M) 1608/98 filed by Shri S.K. Chaturvedi. The Honble High Court was pleased to direct an inquiry into the number of the premises sealed by the order of the learned SDM. The inquiry was conducted by ASI Jai Singh of District Investigating Unit, East District, Delhi, who has filed his own duly sworn affidavit before the Honble High Court on 18.5.2001. In the said affidavit, he has specifically mentioned that he was directed to clarify the fact as to whether Shop No. 741 is situated in property No. 736/2 or otherwise. The inquiry was conducted by ASI Jai Singh of District Investigating Unit, East District, Delhi, who has filed his own duly sworn affidavit before the Honble High Court on 18.5.2001. In the said affidavit, he has specifically mentioned that he was directed to clarify the fact as to whether Shop No. 741 is situated in property No. 736/2 or otherwise. In compliance to the said directions, he had written letters to MCD as well as to SDM, Gandhi Nagar and as per report of the Assistant Assessor and Collector, Shahdara (South) dated 14.5.2001, it was clarified that property Nos. 741 and 736/2 are two different properties. On the basis of local enquiries, ASI Jai Singh came to know that property No. 741 is of about 500 sq. yards and in the said property, there are 14 shops as it is two side open corner plot. He has further mentioned in his affidavit that property No. 736/2 is entirely a different property though both are adjacent to each other. 21. IO/ASI Jai Singh also obtained a report from the office of learned SDM dated 16.5.2001 in which it was mentioned that only property No.741 was sealed, which was in dispute and no action or directions were given with regard to property No. 736/2 and he further stated that petitioner (S.K. Chaturvedi) was not connected with property No. 741 in any manner. 22. The case of Shri S.K. Chaturvedi, the present petitioner and Lal Bahadur and Dharmender, Respondent Nos. 3 and 4 is that they are tenants/owners of property No. 736/2. Even on the receipts filed on record on their behalf, purported to have been signed by Rani Kumari, the property number mentioned is 736/2. The suit for partition between the ancestors of Lal Bahadur and Dharmender Mark L-2 also shows the property No. 736/2 and the site plan filed along with the said petition shows that property No. 741 is others property adjacent to their own property. 23. Mr. S.K. Chaturvedi has himself filed a Civil Suit against Gu1shan Dhamija and Phool Singh in which he has mentioned the property number as 736/2 and not as 741. In the Rent Agreement dated 3.1.1996, said to have been executed between Phool Singh and Shri S.K. Chaturvedi, property number has been shown as 736/2, Jheel Khuranja, Delhi-51. 23. Mr. S.K. Chaturvedi has himself filed a Civil Suit against Gu1shan Dhamija and Phool Singh in which he has mentioned the property number as 736/2 and not as 741. In the Rent Agreement dated 3.1.1996, said to have been executed between Phool Singh and Shri S.K. Chaturvedi, property number has been shown as 736/2, Jheel Khuranja, Delhi-51. Shri S.K. Chaturvedi claims to have come in possession of the property in dispute on the basis of this agreement Mark B. He states in his examination-in-chief that he was earlier a tenant in House No. 736/3 since March, 1994 and he was handed over the possession of the premises in dispute by Phool Singh on 1.1.1996. The agreement itself is not dated 1.1.1996 but the same is dated 3.1.1.1996. He has paid two years advance as security deposit but the said fact is nowhere mentioned in the agreement. In cross-examination, he states that he was not having any receipt of Rs.72,000/- which was paid as advance rent for three years by him to Phool Singh. He also admits that in the complaint filed by him, there was no mention of property No.741. He further admits that in the agreement dated 3.1.2006, there was no mention of property No. 741. The said agreement was between Phool Singh as Attorney of Smt. Ram Pyari and Shri Jai Chand and Shri S.K. Chaturvedi on the other hand. As per Shri S.K. Chaturvedi, he did not remember, who had purchased the stamp paper and in whose name, the stamp paper was purchased. He did not remember who got the said documents typed and when they were typed. He also did not remember who had got the said agreement attested or who took the documents for attestation to the Notary Public. Similarly he did not remember, who had prepared the Rent Receipt dated 1.1.1996 Mark A. He admits that he never remained in possession of property No. 741 and his claim pertains to only property No. 736/2. The IO of Police Station Krishna Nagar as well as SDM, Shahdara had initiated action under Section 145(1) and 146(1) Cr.P.C in respect of property No. 741, Jheel Khuranja, Delhi-51. 24. Shri Phool Singh has expired and in his place, his son Lal Bahadur has become a party and he was also examined in evidence on 13.5.2003. The IO of Police Station Krishna Nagar as well as SDM, Shahdara had initiated action under Section 145(1) and 146(1) Cr.P.C in respect of property No. 741, Jheel Khuranja, Delhi-51. 24. Shri Phool Singh has expired and in his place, his son Lal Bahadur has become a party and he was also examined in evidence on 13.5.2003. Lal Bahadur states that his father had given property No. 736/2 on rent to Shri S.K. Chaturvedi vide agreement dated 3.1.1996. As per him, his father had gone to Sultanpur, Haryana about 8-10 days prior to 4.1.1996 and he returned back from Haryana only on 6/7.1.1996. It means that even if it is presumed that his father had gone to Haryana at least 8 days prior to 4.1.1996, so Shri Phool Singh had left Delhi on 26.12.2005 and he came back to Delhi only on 6/7.1.1996. Hence Shri Phool Singh was not in Delhi either on 31.12.1995 when it is shown that Smt. Rani Bai had returned the possession to Shri Phool Singh and nor he was present in Delhi on 1.1.1996 when the property is stated to have been given on rent by Phool Singh to Shri S.K. Chaturvedi nor he was present in Delhi on 3.1.1996 when the alleged Rent Agreement was executed between Shri S.K. Chaturvedi and Shri Phool Singh. So, it is clear that these documents were prepared later on with a view to use them as evidence in the legal proceedings but the truth has come on record in the statement of Shri Lal Bahadur S/o Shri Phool Singh. Shri Lal Bahadur further states that his father did not know how to read or write English but the agreement was prepared in English. Similarly he did not know from whom his father had got prepared the Rent Receipt and he did not know who had purchased the stamp papers pertaining to the agreement between Phool Singh and Shri S.K. Chaturvedi and when or who had got the same attested. Shri S.K. Chaturvedi is an Advocate but he does not disclose as to who had purchased the stamp paper, who got the agreement typed and who had got the same attested from the Notary Public. 25. The said agreement was attested by two witnesses namely Karamvir and Lal Bahadur. Shri S.K. Chaturvedi is an Advocate but he does not disclose as to who had purchased the stamp paper, who got the agreement typed and who had got the same attested from the Notary Public. 25. The said agreement was attested by two witnesses namely Karamvir and Lal Bahadur. Karamvir states in his evidence that rent agreement was executed on 1.1.1996 when he was physically present there and he had signed the same as witness. The Rent Agreement itself shows that stamp paper was purchased on 3.1.1996 and the agreement is dated 3.1.1996 and not 1.1.1996 as deposed by Shri Karamvir Singh. He also does not know that from whom, the stamp paper was purchased. Mr. Chaturvedi had visited his house in the evening and had asked him to come to his office on 1.1.1996 to sign documents and the Rent Agreement written on stamp paper was already placed there before he reached and the Same was not written in his presence and he had signed the same in the house of Phool Singh on 1.1.1996. As per this witness, he had signed the Rent Agreement on 1.1.1996 whereas the stand of Shri S.K. Chaturvedi is that the Rent Agreement itself was prepared on 3.1.1996 and not on 1.1.1996. that again puts the authenticity of this Rent Agreement in doubt." 5. On the basis of the aforesaid discussion which is based upon the evidence on record, the learned ASJ concluded that the petitioner had failed to prove that any rent agreement was executed between him and Shri Phool Singh in respect of the property No. 741 and he was put in possession of the same on 1.1.1996. Even the witnesses examined by the petitioner had not been able to give the premises number, i.e. whether it was 736/2 or 741. The learned ASJ observed: "26. ...... Witnesses Q.H. Khan, Poadam Chand, Karamvir Singh. Tej Singh, Ramvir Singh, Khajan Singh, Lal Bahadur and Dharmender Kumar were either not sure of the number, or if at all they depose, they only talk about property No. 736/2. Lal Bahadur states that he did not know how many shops were there in property No. 741 or who were the shopkeepers, who were running the shops in the said propel1y. Lal Bahadur states that he did not know how many shops were there in property No. 741 or who were the shopkeepers, who were running the shops in the said propel1y. As per Dharmender, property No. 741 and 736/2 were in the joint possession of tile family of his Great Grand-father Hira Singh and grand-father Phool Singh. As per him, the earlier tenant Rani Kumari returned the possession of the disputed property to Phool Singh on 31.12.1995 and the physical possession of the said property was given by Phool Singh to Shri S.K. Chaturvedi on 1.1.1996 but as per Lal Bahadur, his father Phool Singh was not in Delhi on these dates. As per him, the disputed premises bears both the numbers i.e. 741 and 736/2 and their boundaries cannot be ascertained as both arc so mixed, He also admits regarding the Civil Partition Suit. In the site plan tiled along with the said suit, the property No, 736/2 is clearly marked and property No. 741 was shown on the west side of this property as others property and the fact mentioned by him that both the properties are Inter-mixed and their boundaries cannot be separated is far from truth," Thereafter, the learned ASJ went through the evidence produced by the respondent No.2 Shri Gulshan Dhamija as per which the property in question, which was sealed, bears No. 741, which he had inherited from his father Mangat Ram, who had purchased the said property in three parts in the year 1981, 1984 and 1985. Shri Gulshan Dhamija had stated that he had filed a suit in the High Court against one Ashwini Kumar and others relating to this property. The said suit had been compromised vide order dated 14.3.1996 (Ex.CW-1/6) and as per the compromise decree, property number was mentioned as 741, Jheel Khuranja, Delhi. He had deposed that in view of the compromise, he was handed over the vacant possession of this property on 23.12.1995 and after taking possession he got performed religious ceremony from 29.12.1995 to 31.12.1995 in the premises and from 1.1.1996 he started his shop. On 4.1.1996. in the morning hours, he found that the lock of his shop was changed and a board of the petitioner was fixed. He immediately rang up the PCR and lodged FIR under Sections 380/448, IPC, pursuant whereto proceedings under Section 145. Cr.P.C. were initiated. On 4.1.1996. in the morning hours, he found that the lock of his shop was changed and a board of the petitioner was fixed. He immediately rang up the PCR and lodged FIR under Sections 380/448, IPC, pursuant whereto proceedings under Section 145. Cr.P.C. were initiated. On the basis of this evidence, the learned ASJ concluded as under: "29. On the basis of the above mentioned evidence, it is quite clear that as per Gulshan Dhamija, he was handed over the possession of the disputed property by Smt. Rani Bai/Kumari in pursuance of the compromise arrived at between them before Honble High Court of Delhi and the possession was handed over on 23.12.1995 and an application was moved to record the compromise, which was recorded vide Ex. CW 1/6 before the Honble High Court. Hence, where the possession was handed over in a pending legal proceedings before the Honble High Court, there remains no doubt about the authenticity of the same and Shri Gulshan Dhamija has been able to prove that he was in possession of the shop/property No. 741, Jheel Khuranja, Delhi since 23.12.1995. 30. As far as the claim of Shri S.K. Chaturvedi that he was in possession on the date when the property was sealed or at least two months prior thereto is concerned, he has not been able to prove so. Once Rani Kumari had handed over the possession to Gulshan Dhamija in the proceedings pending before the Honble High Court on 23.12.1995, there was no scope for her to hand it over again to Shri Phool Singh on 31.12.1995 and, moreover, as per the statement of Lal Bahadur, his father Phool Singh was not even present in Delhi on 31.12.1995. Similarly in the absence of Phool Singh in Delhi, there was no possibility of executing the Rent Receipt dated 1.1.1996 and the Rent Agreement dated 3.1.1996 in favour of Shri S.K. Chaturvedi. Hence, Shri S.K. Chaturvedi has failed to prove the Rent Agreement dated 3.1.1996 in his favour. Since Shri S.K. Chaturvedi has failed to prove any document in his favour regarding taking propel1y on rent from Shri Phool Singh, there was no cause or reason for him to come in possession of property No. 741, Jheel Khuranja. Hence, Shri S.K. Chaturvedi has failed to prove the Rent Agreement dated 3.1.1996 in his favour. Since Shri S.K. Chaturvedi has failed to prove any document in his favour regarding taking propel1y on rent from Shri Phool Singh, there was no cause or reason for him to come in possession of property No. 741, Jheel Khuranja. 31, Moreover, through the case, the stand of Shri S.K. Chaturvedi is that he had taken property No. 736/2, Jheel Khuranja on rent and not property No. 741 and it has been clarified from the documents on record like copy of the partition suit, report of ASI Jai Singh, report of MCD and of learned SDM that it was not property No. 736/2 which is the subject matter of litigation but it was property No. 741, Jheel Khuranja, Delhi which was the matter of dispute before learned SDM." 6. It is clear from the aforesaid that a finding has been arrived at by the Courts below that property in question which was sealed is 741, Jheel Khuranja and not 736/2. These are the finding of facts recorded by the two Courts below. Under Section 482, Cr.P.C. it is not open to the petitioner to challenge these finding of facts. It is not the province of this Court, in exercise of its extraordinary jurisdiction, to re-appreciate the entire evidence and find out as to whether the finding of facts arrived at by the Courts below is proper or not. Even otherwise, no case is made out on the basis of which these findings could be disturbed. The petitioner sought to raise only hyper-technical issues regarding the procedure adopted by the learned SDM with which I am not convinced. . 7. I, therefore, find no merit in this petition which is accordingly dismissed and the interim order stands vacated. Crl.M. No. 11700/2006 also stands dismissed. No cost. Petition dismissed & Crl. M. No. 11700/2006 dismissed.