1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (MAIN) NO. 128 OF 2008 Ricardo Nazareth, Owner of Chin Chong Restaurant & Bar, Corlim-Goa. .... Petitioner V/s 1. Joao Franscisco D'Souza R/o. Flat No. F-2, Harmony apartment, Porvorim, Bardez-Goa. 2. State (Represented by the Old Goa Police Station). .... Respondents Mr. Nigel Da Costa Frias, Advocate for the Petitioner. Mr. A. Monteiro, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 7th JULY, 2008 ORAL ORDER Heard Shri Costa Frias and Shri A. Monteiro, the learned Advocates on behalf of the petitioner (party no. 2) and respondent no. 1(party no.1) in this second round of litigation, before this Court, being an application filed under Section 482 of the Code of Criminal Procedure, 1973 to challenge the orders of the learned SDM dated 19/02/2008 as confirmed by the learned Session Judge in revision by order dated 20/05/2008. 2. The dispute between the petitioner and respondent no. 1 is as regards a 2 house bearing no. 274 belonging to Francisco Velho De Souza situated in survey no. 20/3. Petitioner has house of his own bearing no. 273 situated in survey no. 20/2. 3. There is no dispute that by virtue of an agreement dated 3/07/2001, executed before a notary, the suit house was given on lease to respondent no.1, upon payment of rent of Rs. 3,000/- per month and deposit of Rs. 20,000/-. There is also no dispute that subsequently the house was given on lease to the petitioner by agreement dated 15/12/2005, upon payment of Rs. 650/- per month and deposit of Rs. 50,000/-. Likewise, there is no dispute that after the conditional order was made on 7/06/2006, the house came to be sold to the petitioner by deed dated 10/10/2006. 4. Respondent no. 1 filed an application dated 31/05/2006 to the Sub- Divisional Magistrate complaining that when on 29/05/2006 he went to the suit house at about 5 p.m., he found that the respondent no. 1 had broken open the door locks and forcibly entered the suit house and had also kept belongings of his employee by name Vishwanath Reddy, outside the suit house. It appears that at the time of the filing of the said complaint, respondent no. 1 was residing at Porvorim, but according to him the suit house was in his possession through the said employee Vishwanath Reddy. The Sub-Divisional Magistrate called for a police report and he was informed 3 that there was a dispute as regards ownership of the property and that the SDM may pass appropriate orders. As a result of the said police report, the conditional order came to be made on 7/06/2006. The case of the petitioner was that he took possession of the said house validly from the owner only after entering into a leave and license agreement on 16/12/2005 and it is the said owner who had given personally the possession of the suit house to him. The petitioner examined himself in support of his case. The respondent no. 1 also examined himself and examined 4 more witnesses. Both the parties chose not to examine the owner of the said house said Francisco Velho De Souza and both the Courts below have come to the conclusion that it is the petitioner who ought to have examined him, more so because he was residing along with the petitioner very often. 5. The learned SDM after considering the evidence produced came to the conclusion that it was the respondent no. 1(party no.1) who was in possession of the suit house till May, 2006 and that the petitioner had wrongfully and forcibly dispossessed the petitioner (party no.2) from the suit house and, consequently, the party no. 2 was directed to hand over the vacant possession of the suit premises to respondent no.1. The learned Sessions Judge after discussing the evidence produced on behalf of both the parties came to the conclusion that it was the obligation of the petitioner to have examined the said owner Francisco Velho De Souza rather than respondent no.1 since it 4 was the petitioner who had claimed that he was put in possession of the said Francisco Velho De Souza upon effecting payment in lacs by the petitioner. The learned Sessions Judge also observed that the dismissal of Mundkar application filed by respondent no. 1 in respect of the suit house in no manner assists the petitioner to prove his possession over the suit house. Ultimately, the learned Sessions Judge came to the conclusion that the learned SDM while passing the impugned order had assessed the evidence of the witnesses and meticulously had come to the conclusion that party no. 1 was in possession of the suit house bearing no. 274. 6. Shri Costa Frias, the learned Counsel on behalf of the petitioner has submitted that Vishwanath Reddy who according to respondent no. 1 was residing in the suit house was not examined by respondent no.1. However, the fact remains that the respondent no. 1 did examine another witness who had seen the said Vishwanath Reddy residing in the suit house and only on that count, the impugned orders cannot be set aside. Learned Counsel on behalf of the petitioner, moreover, submits that the respondent no.1 had field a mundkar application on 20/09/2001. However, the fact remains that the said mundkar application got dismissed for default after issuing notice to said Francisco Velho De Souza. As rightly observed by the learned Sessions Judge, the filing of the said application would not assist the petitioner to prove his possession of the suit house. On the contrary, the said application 5 might have been filed by the respondent no.1 to continue to remain in possession though the plea taken by him in the said application might have been contrary to his case that he was inducted in the suit house pursuant to the agreement dated 3/07/2001. Both the Courts below have held that it was incumbent upon the petitioner to have examined the said Francisco Velho De Souza and it is rightly so. The petitioner claimed that he came into possession of the suit house pursuant to agreement dated 15/12/2005, at the time when another agreement between the said Francisco Velho De Souza and respondent no. 1 was subsisting and, therefore, it was all the more necessary that petitioner ought to have examined the said Francisco Velho De Souza. Except for the filing of the said application for mundkarship, the case of respondent no. 1 was otherwise consistent and sufficiently supported by the witnesses examined by him. On the contrary, the evidence led by the petitioner was inconsistent with the case pleaded by him. In fact, in the written statement filed by him, the petitioner had pleaded that he had taken possession of the house only after the said agreement dated 15/12/2005 but in his evidence he had clearly stated that he had come in possession of three rooms in the year 1998 at a rent of Rs. 500/- per month and after the agreement, the possession of the entire house and surrounding portion of the land was given to him. Both the Courts below, after appreciation of evidence produced, have rightly come to the conclusion that it is the respondent no. 1 who was in possession of the suit house till the end of May, 2006. In the 6 light of that, I find there is no merit in this petition. Consequently, the same is hereby dismissed. 7. Learned Counsel on behalf of the petitioner prays for stay of operation of this order. Shri Monteiro, learned Counsel of respondent no. 1 objects. Considering the facts and circumstances of the case, in my view, this is not a fit case to grant stay. N.A. BRITTO, J. NH/-