BEFORE THE HON BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P. No. '2 (Z2009 Rajesh Tamrakar S/o. Dwarika Prasad Tamrakar aged about— 43 years R/o Hatrl Bazar Dhamdha Dlstrlct- Durg (C G) VERSUS RESPONDENTS :1. Gaurishankar Tamrakar S/o. Sukhru Prasad Tamrakar, R/o. Tamerapara Dhamdha, District Durg (C.G.), Present address- 5 Building, Durg, District- Durg (C.G.) The State of Chhattisgarh, through- Collector, Durg, District- Durg (C.G.) PETITN UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE ORDER DATED 1004 2009 PASSED IN CRIMINAL REVISION NO 147/2007 PASSED BY 2W ADDITIONAL SESSIONS JUDGE DURG ARISING OUT OF THE ORDER DATED 02.0}2007, PASSED IN CRIMINAL CASE NO. 408/2005, BY THE SUB DIVISIONAL MAGISTRATE, DURG (C.G.). PETITIONER , IO HIGH COURT OF CHHATTISGARH, BILASPUR Cr.M.P.No.352l2009 B: HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J S Rajesh Tamrakar Versus Gaurishankar Tamrakar and another PETITIONER RE$PONDENTS PETITION UNDER SECTION 482WOF THE CObE OF CRIMWAL PROCEDURE, 1973 Kjhééifa‘iiéé?” Shri A.K. Prasad, counsel for the petitioner. Shri R.S. Baghel, counsel for respondent No.1. Shri Vaibhav G'overdhan, Panel Lawyer for the State/ respondent No.2. ORAL ORDER (17.11.2011) Manindra Mohan Shrivastava, J. Heard. (2) This petition has been filed under Section 482 of the Code of Criminal Procedure: arising out of order dated 10.42009, passed in Criminal Revision No. 147/2007, whereby the learned 2“ Additional Sessions Judge, Durg affirmed the order dated 2.7.2007, passed in Criminal Case No. 408/2005 by the Sub Divisional Magistrate, Durg in the proceedings under Section 145 Cr.P.C., declaring possession of the disputed house in favour of respondent No.1. M ‘ CRMP 352/2009 (3) Respondent No.1- Gaurishankar Tamrakar moved an appncation before the S.D.M., Durg on the allegations that the petitioner has been interfering with his possession in the house in dispute and the petitioner is selling out the tin shade, doors and other fixtures of the house. On the application so made, the Magistrate called a report from the Police Statien, Durg, who submitted the report regarding dispute between the parties. Thereafter, the Magistrate proceeded and passed a preliminary order. Parties were allowed to lead oral and documentary evidence. The learned Magistrate after going through the pleadings and the evidence on record came to the conclusion by recording a finding of fact that respondent No.1 Gaurishankar is in possession of the property in dispute. Aggrleved by the order, revision was preferred, which too was dismissed, against which this petition has been tiled. (4) Learned counsel for the petitioner contended that the learned Magistrate as well as the revisional Court, have committed patent illegality while declaring possession of respondent No.1 in the proceedings under Section 145 Cr.P.C., without recording a specific finding as to who was in actual possession of the property in dispute two months preceding the date of filing of the application under Section 145 Cr.P.C. Learned counsel submits that the purport and object of Section 145 Cr.P.C. is to protect the possession of a person, who remained in possession two months before the date of filing the application. Other submission of learned counsel for the petitioner is that while recording a finding of possession in favour of respondent No.1, the Courts below have not properly appreciated the evidence led by the petitioner. They have also exceeded the jurisdiction in recording the finding, without there being clinching, oral and documentary evidence to support the possession of J1 3 CRMP 352/2009 respondent No.1, and also ignoring, that according to him he was o not residing in the disputed premises. (5) On the other hand, learned counsel for respondent No.1 submitted that the order declaring possession of the respondent has been passed after due and proper examination and marshalling of oral evidence led by both the parties. lt is submitted that the Ieamed Magistrate has leaned to pass an order of declaring possession in favour of respondent No.1 accepting his version. He submitted that respondentJNoJ has produced documentary evidence to show that the disputed property was in his possession for long standing, whereas, the petitioner has failed to produce any documentary evidence in this regard. (6) The submission of iearned counsel for the petitioner is that in the absence of specific finding as to who was in actual possession two months prior to the date of tiiing of the application under Section 145 Cr.P.C., the order is unsustainable and it has to be rejected. (7) .The provisions contained in Section 145 Cr.P.C., sub section (4) obliges the Magistrate to hear the parties, peruse the statements, after receiving all such evidence as may be produced by the parties and after taking such further evidence if any, as he thinks necessary, and if possible, decide whether any and which of the parties was, at the date of the order made by him under sub section (1), in possession of the subject of dispute. The proviso added to the aforesaid provision provides 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 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 (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (1). 4 CRMP 352/2009 (8) Therefore, the eventuality to decide as to whioh of the party was in possession two months before the date referred to in the provision, wiii arise only when the Magistrate comes to the conciusion that the case before him is one where any party has been forcibiy and wrongfuiiy dispossessed within the time specified therein. Otherwise, the provision requires the Magistrate to take a decision to decide, if possible, the possession on the date of passing of the preliminary order. Therefore, the submission of learned counsel for the petitioner in this regard, cannot be accepted. (9) After going through the orders passed by the Magistrate as also by the revisional Court and the evidence which has been led by both the parties, it is found that both the parties have led oral evidence, claiming their possession and after assessing the evidence on record, the Magistrate has relied upon the evidence led by respondent No.1 - Gaurishankar to hold the possession in his favour. Respondent No.1 also placed documents before the Magistrate, the receipts and acknowledgement of tax payment of the house in his name to the local body, issued in his favour, whereas, the petitioner has not placed any documentary evidence. The approach of the Magistrate and the revisional' Court to lean in favour of respondent No.1 on the basis of available oral and documentary evidence led by him, neither can be said to be patently illegal nor perverse so as to warrant interference by this Court in exercise of the inherent powers under Section 482 Cr.P.C. (10) For the foregoing reasons, l do not tind any merit in the petition and the same is liable to be dismissed and it is accordingly dismissed. \\ Sd/- Manindra Mohan Shrivastava Judge , (r f