Crl.M.C.3699/2002 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. 3699/2002 % Date of reserve : 18.02.2009 Date of decision : 18.03.2009 KANSHI RAM & ORS. .……Petitioners Through: Mr.J.K.Jain, Advocate Versus INDER SINGH and ORS. .......Respondents Through: Mr.K.K.Sud, Sr.Advocate with Mr. M.L. Sharma, Advocate CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed Yes to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. On 10.02.2001 a dispute arose between the petitioners on the one hand and the respondents on the other hand regarding possession of a plot of land measuring 1000-1200 sq. yards forming part of khasra no. 188, Main Dabri Nasirpur Road (hereinafter referred to as the „disputed property‟) which also resulted in registration of two cross cases against each of the parties vide FIR No. 100/2001 and 101/2001 both under Sections 147/149/308/323/427/506 IPC at P.S. Najafgarh which are still pending. 2. SHO Najafgarh on the same day also made a reference of the dispute to the then SDM Najafgarh under Section 145 Cr.P.C. apprehending breach of peace. SDM passed a preliminary order under Crl.M.C.3699/2002 Page 2 of 27 Section 145(1) of Cr.P.C. and called upon both the sides to file their written statements. The petitioner was arrayed as the first party while the respondents were arrayed as the second party in those proceedings. In their written statements both the parties claimed settled possession in the aforesaid plot on the relevant date as well as two months before that and alleged that it was the other party who wanted to grab the possession of the same. 3. During the course of proceedings the parties at one stage also requested for dropping the proceedings but it was not agreed by the SDM. In fact vide his detailed order dated 11.05.2001 the SDM declared that the second party i.e the respondents herein were in possession of the disputed property and were entitled to retain the possession till evicted in accordance with law by a competent Civil Court. He also directed SHO concerned to provide necessary protection in this regard. However the order was passed without recording any evidence. 4. The petitioner (i.e the first party) filed a revision against the aforesaid order before the Sessions Judge which was decided by the then Addl. Sessions Judge, Shri. R.K. Gauba. He remanded the case back to the SDM with the following directions: 9. But then, I am disturbed at the manner in which proceedings appear to have been short-shrifted by the SDM. The provisions of section 145(4) Cr.P.C. enjoin upon the SDM to receive such evidence as the parties may produce before him. The SDM had called upon both sides to lead evidence on 4.5.2001. Both sides sought the proceedings to be dropped though for different reasons. The SDM adjourned the matter to consider the said joint prayer of both sides. But apparently he did not agree with them. He considered it proper to take the matter to logical end by way of final order U/s 145(6) Cr.P.C. But, for this purpose, it was his bounden duty to call upon the parties to lead their respective evidence for purposes of enquiry U/s 145(4) Cr.P.C. Rather than doing this, the SDM proceeded to decide the matter only on the basis of the documents and written replies that had been earlier submitted. 10. The counsel for second party has relied on 1885 Cr.L.J. 1837 to argue that recording of oral evidence was not compulsory since the proceedings before the SDM were short and summary in nature and the Magistrate could dispose it of on perusal of the documents without examining any witness. The ld. Counsel for the second party seems to be ignoring the full import of Crl.M.C.3699/2002 Page 3 of 27 observations in Para 9 of the judgment cited at bar. It was observed in that case that recording of oral evidence was not compulsory “if none of the parties desire to produce such evidence and if the Magistrate does not feel the necessity for the same”. It is quite clear that in a case where questions of fact about physical possession was raised on account of contradictory claims of both sides, the matter could not be settled by the SDM without calling upon the parties to lead evidence. This is why the SDM had listed the matter for evidence of the first party as per his order dated 20.4.2001. A finding about the merits of the rival claims could not be given under Section 145 Cr.P.c. till both parties had led evidence. (AIR 1965 J&K 69), In these circumstances, the impugned order seems to be based on no evidence and thus cannot be sustained. It appears to have been passed by way of denial of the right to adduce evidence and so is not only erroneous but improper. It may be added that the SDM appears to have also gone by extraneous considerations like evidence collected in another proceedings U/s 145 Cr.P.C. between petitioner No.2 and a third person named Narender Singh. This approach was not permissible and would also vitiate the impugned order. 11. Before concluding, I must also observe that the SDM in proceedings U/s 145 Cr.P.C. is required to also identify the property properly, give specific finding as to which of the parties before him was in possession on the date the proceedings were initiated (or within 2 months preceding the said date) and further if such party (in possession) had been dispossessed. In the impugned order, the SDM did not give any specific findings about the possession and it appears he also did not make a follow up on the directions for demarcation report as called for vide order dated 4.4.2001 inasmuch as the subsequent order sheets do not reflect such a report to have been submitted. 12. Consequently, the impugned order cannot be sustained. It is accordingly set aside. The matter is remanded to the SDM for further proceedings in accordance with law on the stage where the matter was as per order dated 20.4.2001. The SDM after due enquiry shall pass a fresh final order. The parties shall appear before the SDM for further proceedings on 17.8.2001. The lower court record be returned with a copy of this judgment. The revision petition stands disposed of. “ 5. After the remand, the SDM recorded the evidence as led by both the parties. On behalf of the petitioners Shri Devender Singh son of Shri Kanshi Ram, Shri K.K. Sharma a sanitary inspector MCD, ACP S.L. Dua of P.S. Mayapuri, Shri Balbir Singh who claims to be a tenant under the petitioners in a room also described as a shop situated in the plot in dispute, Shri Ashok Kumar son of Shri Mam Chand and one Rajbir Singh son of late Shri Hamir Chand were examined. The documents filed by these witnesses such as MCD challans filed by K.K. Sharma, a report filed by the ACP S.L. Dua were also taken on record. However Shri Kanshi Ram who claims to be the bhumidar and in possession of the property did not appear in the witness box. 6. On the other hand, respondents examined Shri Inder Singh Crl.M.C.3699/2002 Page 4 of 27 Solanki, Shri Naresh Kumar, ACP Hardeep Singh of District South West Vasant Vihar, New Delhi and Shri Satpal Singh Solanki as witnesses. They also relied upon four sets of documents about purchase of property from Kanshi Ram which had been executed by him much before the relevant date which fact is not in dispute. 7. After recording the evidence, the SDM vide his order dated 27.9.2002 held that it was the petitioners (first party) who were in possession of the disputed property on the relevant date and two months before that and thus, again ordered the SHO concerned to protect the possession of the disputed property in favour of the petitioners. This order of the SDM dated 27.09.2002 was assailed in revision but this time by the respondents which was decided by the Addl. Sessions Judge Shri Rajesh Kumar on 07.11.2002. 8. The Addl. Sessions Judge by his order also declared that it was the respondents herein who are in actual possession of the plot in dispute shown in the site plan placed by the respondents which is undisputedly admitted by both the parties is an open land. The possession of the shop-cum-room to maintain breach of peace a status quo qua possession of the said shop was maintained as on the date of the order. It was further held that the respondents herein shall remain in possession of the remaining entire open land in dispute until ousted by due course of law by the petitioners and directed the SHO to ensure that no disturbance is caused in the possession of the disputed portion of the land. The SHO was directed to comply with the order within 3 days of the issue of the order and consequently the order of the SDM dated 27.09.2001 was set aside. Crl.M.C.3699/2002 Page 5 of 27 9. It is against the aforesaid order the present petition has been filed by the petitioners who not only questions validity of the orders on merits but also questions the propriety of the said order keeping in view the limited powers vested in a revisional Court under Section 397 Cr.P.C. This petition was decided by Hon‟ble Mr. Justice R.S. Sodhi (as His Lordship then was) vide judgment dated 19.02.2004, whereby the order of the Addl. Sessions Judge dated 07.11.2002 was set aside and the order of the SDM dated 27.09.2002 was upheld. A review application against the said order was also dismissed. 10. The matter was then taken to the Apex Court by the the respondents by way of an SLP. The Apex Court disposed of the SLP vide order dated 20.04.2006 with the following directions: By the impugned order dated 19th May, 2004, the High Court has set aside order dated 7th November, 2002 passed by the learned Additional Sessions Judge in Criminal Revision No. 28 of 2002 whereby possession of the appellants over the subject of dispute was declared. The sole ground for allowing the application by the High Court was that present appellants filed a petition before the High Court in the said case admitting therein that they were put into possession of the subject of dispute on 11th November, 2002 by the police. It appears that on 7th November, 2002, the learned Additional Sessions Judge allowed the Revision Application, set aside the order of the sub-Divisional Magistrate whereby the possession of the respondents over the subject of dispute was declared and directed that possession of the appellants shall not be distributed in any manner and the Station House Officer of the concerned police station was directed to see that this direction is complied with. Pursuant to the aforesaid order, the Station House officer of the concerned police station submitted a report dated 9th November, 2002 stating therein that in the evening of 8th November, 2002, the said order passed by the revisional court was received by him and on 9th November, 2002 when he went to the subject of dispute, found appellant Inder Singh Solanki was present there with his son and bricks etc. for the purposes of making construction over the subject of dispute by them were collected which was objected to by the respondents. Stating these facts the Station House Officer submitted the report that there is likelihood of beach of peace. The said report was placed before the learned Additional Session judge on 9th November, 2002. He directed the Station House Officer to remain present in person on 11th November, 2002 on which date the learned Additional Crl.M.C.3699/2002 Page 6 of 27 Sessions Judge after perusal of the report passed the order that no further action should be taken in the matter. It appears that erroneously it was observed in the said order dated 11th November, 2002 that police had submitted a report as if possession has been delivered to the appellants by them whereas in the report no such fact has been stated, rather the report shows that possession of the appellants was declared by the revisional court and the police when goes to the subject of dispute found that appellants were present there and wanted to raise construction thereon. Nowhere it was stated that police at any point of time delivered possession to the appellants. It appears that in the order of Additional Sessions Judge dated 11th November, 2002 as well as petition filed by the appellants before the High Court under some confusion such statement was made as if the police had delivered possession of subject of dispute to the appellants, which is factually not correct. This being the position, we are of the view that the impugned order is fit to be set aside and matter should be remitted to the High Court to dispose of the application on merits. Accordingly, appeals are allowed, impugned orders dated 19th May, 2004 and 31st May, 2004 refusing to review the said order are set aside and the matter is remitted to the High Court to consider the matter on merits after taking into consideration the evidence already on behalf of the parties and decide the case in accordance with law. 11. It has been submitted by the parties that in view of the aforesaid directions given by the Apex Court, this petition has to be decided on merits after examining the evidence of both the sides. It is submitted that the main issue which needs to be adjudicated upon by this Court is “as to who was in possession of the suit property as on 10.02.2001 and two months before that”. It has been submitted by the petitioners that in these proceedings the evidence which is required to be taken into consideration would be that of the physical possession of the disputed property and not the documents relied upon by the respondents. It is also submitted that the identification of the plot also becomes necessary as in terms of the demarcation report on the Southern side of khasra No. 188, there is also khasra No. 185 which is also shown as a part of the disputed plot and in respect of the said report no objections have been filed by the respondents and, Crl.M.C.3699/2002 Page 7 of 27 therefore, the question of petitioners being in possession thereof does not arise. It is pleaded on behalf of the petitioners that the evidence available on record proves that the disputed property was in the possession of petitioners as on date of the dispute and they had been using the said plot of land as Gitwar where Kuri etc. were lying, Dung cakes were put, cattles were tied & more particularly three doors of the house of petitioners were opening in the land. It is also submitted that there is only one wall with aforesaid openings towards the land in dispute. Petitioners have day to day access to the land in dispute, residing along side, whereas the respondents are not residing even nearby. It is also submitted that the land also has a shop (as also identified by demarcation report & police Kalandra) – which is possessed by the tenant of petitioner. This fact has been accepted by the Ld. SDM & even not disputed by the Ld. ASJ, who never held respondent to be in possession of the portion of shop. The petitioners have also relied upon the report of Shri S.L. Dua ACP who has reported that the possession of land in dispute was that of the petitioners as per his report dated 10.04.2001. 12. It is also stated that the witnesses examined by the petitioners have stood by their examination during the course of cross- examination, but Shri Hardeep Singh ACP who appeared on behalf of the respondents in his cross-examination has admitted the existence of the house of the petitioners, 10 feet height walls in between the disputed plot and the house of the petitioners with 3 openings in the said wall towards the disputed property. It is stated that the orders passed by the SDM is based upon the actual possession of the Crl.M.C.3699/2002 Page 8 of 27 petitioners in the disputed property who were sought to be dispossessed by the respondents and it is for that reason they also filed a report on 17.11.2000 i.e. prior to the incident in question. The claim of the respondents is based upon transfer documents, raising of wall of 6 feet height but the evidence led by them does not prove actual user of the disputed property. 13. It is submitted that the transferred documents relied upon by the respondents which are unregistered documents shows that every plot which was sold to the respondents as pleaded by them has 1 boundary wall and a room i.e. there are 4 boundary walls and 4 rooms and each of the walls has a 6 feet height. It is submitted that reliance upon the documents executed in 1982 whereas dispute started in 2001 does not permit presumption of the continuity of the possession in favour of the respondents in view of the judgment delivered by the Supreme Court in AIR 1966 SCC 605. 14. It is also submitted that the order of the Additional Sessions Judge suffers from a jurisdictional error which proceeds on the basis that title follows possession which cannot be the basis of an adjudication under Section 145 Cr.P.C. It is submitted that non- examination of Kanshi Ram as a witness makes no difference as in a proceeding initiated under Section 145 Cr.P.C, the adjudication has to be of actual possession and in this regard the evidence of Devender Singh is sufficient. It is also submitted that even if the transfer of the land to the respondents is taken as proved in the absence of the testimony of Kanshi Ram that alone would not prove the possession of the respondents. It is also submitted that even though in criminal miscellaneous application 3564/03 and 4744/02 the respondents have Crl.M.C.3699/2002 Page 9 of 27 tried to establish as if possession had been delivered to them by the Police which fact is totally mis-conceived as noticed by the Hon‟ble Supreme Court in the order passed by them on 20.04.2006. 15. On the other hand the respondents justified the order passed by the Addl. Sessions Judge on the ground that in the absence of Kanshi Ram appearing in the witness box who is the author of the 4 Power of Attorneys in favour of the respondents transferring the disputed land to the petitioners which documents also mentions about the delivery possession, the evidence of Devender Singh who was aged about 5 years at that time can disprove the case of the respondents that the possessions was given to them qua the disputed property. It is stated that according to the petitioners the land stands vested in the Gram Sabha in 1985. Thus, there is no infirmity in the order of learned ASJ in setting aside the order of the SDM, which was rightly done while exercising powers under Section 397 Cr.P.C and that the said order needs to upheld. 16. At the outset, it may be observed that in the proceedings under Section 145 of Cr.P.C., the SDM is required to adjudicate as to who was in actual and physical possession of the disputed property on the relevant date. In those proceedings even though evidence of title can be given but the question to be decided for making a declaration under Section 145(4) of Cr.P.C. is the factum of actual possession of the property in question as on the date of the dispute and two months before that. 17. At this juncture, it would be appropriate to make a reference to a judgment delivered by the Apex Court in the case of Ranbir Singh Vs. Dalbir Singh and Ors. 2002 (3) SCC 700 where it has been held: Crl.M.C.3699/2002 Page 10 of 27 8. However, the High Court was in error in dealing with the revision petition as if it was exercising appellate jurisdiction. The High Court has dealt with the developments in the case relating to the acquisition of title, the allegations of fraudulent transfers made by Karnail Singh and M/s Homestead and the circumstances in which the suit was dismissed as withdrawn. Keeping in view the limited scope of the proceeding under Section 145 CrPC these questions were not material for determination of the main issues in the case. The Court, while dealing with a proceeding under Section 145 CrPC, is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date; the court is not required to decide either title to the property or right of possession of the same. The question for determination before the High Court in the present case was one relating to the validity or otherwise of the preliminary order passed by the learned Sub-Divisional Magistrate under Section 145(1) CrPC and sustainability of the order of attachment passed under Section 146(1) CrPC. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by Respondent 1. The suits and the interim order are pending further consideration before the civil court. 18. I may also refer to the provisions contained under Section 145 of Cr.P.C which is reproduced hereunder: 145. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression and or "water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy, of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the Subject of dispute: (4) The Magistrate shall then, without reference to the merits Crl.M.C.3699/2002 Page 11 of 27 or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thanks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section