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2013 DIGILAW 209 (MP)

BRIJEDRAN KUMAR JHA v. AMAR NATH SINGH

2013-02-19

N.K.GUPTA

body2013
ORDER : N.K. GUPTA, J. 1. These two revisions are connected with the common order dated 05.05.2012 passed by the Learned Additional Judge to First Additional Sessions Judge, Harda in Criminal Revision No. 41 of 2010 and therefore, both the revisions are decided by the present common order. The applicant of Criminal Revision No. 873 of 2012 has challenged the impugned order dated 05.05.2012 passed by the learned Additional Judge to First Sessions Judge, Harda in Criminal Revision No. 41/2010 whereby the order dated 13.8.2010 passed by the S.D.M., Harda in case u/s 145 of Cr.P.C. was altered. 2. The applicant of Criminal Revision No. 886/2012 has also challenged the impugned order on the basis that he was tenant in a small portion of the premises and therefore, his possession is to be restored. 3. The facts relating to the present revisions in short are that the deceased Chandrakala was the owner of the present house. She kept the applicant Brijendra Kumar Jha as a tenant in small portion of the house. On 14.5.2010, the deceased Chandrakala expired without leaving any successor of first degree. It is alleged that her cremation was done by the applicant Basant Kumar because the father of the applicant Basant Kumar had helped her and accepted the deceased as a sister and therefore, Basant Kumar was looking after her and hence, after her death lock and keys of the house were with the applicant Basant Kumar. The respondents Amarnath Singh and Amit Kumar Singh have claimed themselves to be successor of deceased Chandrakala on the basis of a will and they moved an application u/s 145 of Cr.P.C. before the S.D.M., Harda on 07.07.2010. The learned S.D.M. vide order dated 12.7.2012 passed a preliminary order u/s 145(1) of the Cr.P.C. and thereafter, on 16.7.2010 passed an order u/s 146 of the Cr.P.C. whereby a receiver was appointed. Again on 13.8.2010 the S.D.M. passed a final order in the case by which the entire property was released and it was directed that its possession be given to Basant Kumar. The respondents No. 1 and 2 have challenged that order before the Sessions Court and the learned Additional Sessions Judge reversed the order passed by the S.D.M. 4. I have heard the learned counsel for the parties. 5. The respondents No. 1 and 2 have challenged that order before the Sessions Court and the learned Additional Sessions Judge reversed the order passed by the S.D.M. 4. I have heard the learned counsel for the parties. 5. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the order passed by the S.D.M. on 13.8.2010 was dependent upon the possibility of breach of peace due to possession of the property. The learned S.D.M. found that there was no need to continue with the attachment order and therefore, according to the provisions of sections 145(6)(a) of Cr.P.C. he released the property and possession was directed to be handed over to the person who was in possession soon before the attachment. In revision filed by the respondents No. 1 and 2, it was for the learned Additional Sessions Judge to consider the illegality or perversity visible in the order passed by the learned S.D.M.. Instead of doing so, the learned Additional Sessions Judge had passed an arbitrary order on the sentiment that the applicants were claiming their rights on the basis of a will and the applicant Basant Kumar was a trespasser. 6. On the contrary if the facts of the case are considered for the provisions of Section 145 and 146 of the Cr.P.C. then it would be apparent from the record that when the receiver took the possession of the property Brijendra Kumar Jha was a tenant in a small portion of the house whereas the keys of the remaining portion of the house was with the applicant Basant Kumar. The respondents No. 2 and 3 are the residents of Kolkatta and it is apparent that they did not attend the funeral ceremony of the deceased Chandrakala and therefore, admittedly the possession of the property was initially with the deceased Chandrakala and after her death it was with the applicant Basant Kumar. Basant Kumar himself having the accommodation in the property and therefore, there was no possibility from the side of either Basant Kumar or Brijendra Kumar Jha that they would have broken the peace. Basant Kumar himself having the accommodation in the property and therefore, there was no possibility from the side of either Basant Kumar or Brijendra Kumar Jha that they would have broken the peace. On the contrary respondents No. 2 and 3 who were claiming the property on the basis of the will could interfere in the possession of the applicants and therefore, it was for the S.D.M. to dismiss the application u/s 145 of Cr.P.C. of the respondents No. 1 and 2 from very beginning. 7. At present it is for the respondents No. 1 and 2 to establish their case in civil side. They may claim the property on the basis of the will or being a successor of the deceased Chandrakala and by that civil suit they can apply for the possession also. They could not get any possession of the property by any foul play. Under such circumstances, where there was no possibility of breaking the peace from the side of the applicants the application u/s 145 of Cr.P.C. filed by the respondents No. 1 and 2 was not maintainable. In the proceedings u/s 145 of Cr.P.C. the S.D.M. has no power to look into the ownership of the claim of the person who was in possession of the property. The proceedings u/s 145 of Cr.P.C. are dependent upon two facts: 1. Which party was in possession of the property, and 2. That there was a possibility of breach of peace. In the present case admittedly the applicants were in the possession because after death of the deceased Chandrakala the keys of that house were with the applicant Bansant Kumar whereas Brijendra Kumar Jha was residing in a small portion of the house as a tenant. Since both the applicants were in possession therefore, there was no possibility from their side to break the peace. Hence at the time of final hearing of the learned S.D.M. found that there was no possibility of breaking of peace, he could proceed according to the provisions u/s 145(6)(a) of Cr.P.C. and consequently, it was for the S.D.M. to restore the possession of the applicant Basant Kumar. There was no illegality or perversity visible in the order passed by the learned S.D.M. and therefore, the learned Additional Sessions Judge could not make any interference in the order passed by the S.D.M. by way of a revision. There was no illegality or perversity visible in the order passed by the learned S.D.M. and therefore, the learned Additional Sessions Judge could not make any interference in the order passed by the S.D.M. by way of a revision. The learned Additional Sessions Judge without considering the provisions of Section 145(6) of Cr.P.C. reversed the order by his whims and therefore, the order passed by the learned Additional-Sessions Judge is contrary to law and it cannot be maintained. Under such circumstances, revision filed by the applicant Basant Kumar can be accepted. 8. So far as the revision filed by the applicant Brijendra Kumar Jha is concerned, he was not a party before the S.D.M. and a stranger cannot challenge any order in the superior Courts. It is true that when the receiver took the possession of the property Brijendra Kumar Jha was found in possession of the small portion of the property as a tenant. However, the possession of the property was taken from Brijendra Kumar Jha and he did not apply before the S.D.M. for continuation of his possession with the pretext that he would be the tenant of that person who would be declared to be owner of the property. On the contrary, he vacated the house and therefore, by his own conduct his tenancy vanished and therefore, no relief can be given in the revision filed by a stranger. Hence the revision filed by the applicant Brijendra Kumar Jha cannot be accepted. 9. On the basis of the aforesaid discussion the revisions filed by the applicant Brijendra Kumar Jha is dismissed being not maintainable whereas revision filed by the applicant Basant Kumar is hereby allowed. The impugned order passed by the learned Additional Sessions Judge, Harda is hereby set aside and the order dated 13.8.2010 passed by the learned S.D.M., Harda is hereby restored. In compliance to the order passed by the learned Additional Sessions Judge if the possession of the applicant is disturbed then it is the duty of the S.D.M., Harda to restore the possession of the entire property to the applicant Basant Kumar in compliance with his order dated 13.8.2010. Copy of the order be sent to the S.D.M., Harda as well as the Additional Sessions Judge concerned for information and compliance.