IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.168 of 2009. Judgment Reserved on: 13.06.2011 Date of decision: 26.08.2011 Smt.Usha Devi … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes For the Petitioner: Mr.Anand Sharma, Advocate. For Respondent No.1: Mr.P.K. Sharma, Additinoal Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. For Respondent No.2: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. The petitioner has preferred this petition against the judgment and order passed by the learned Sessions Judge, Solan affirming the order passed by the Sub Divisional Magistrate in case No.412/4 of 2007 on 30.6.2009 in proceedings under Sections 107, 150 and 145 of the Code of Criminal Procedure directing the complainant, respondent herein, to be put in possession of the disputed double storeyed house in portion of Khasra No.451/4 in village Koron, Tehsil and District 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 Solan with the further direction to the Tehsildar, Solan and SHO, Dharampur for implementing the order. 2. Brief facts as noticed by the Sub Divisional Collector are that proceedings under Sections 107, 145, 150 Cr.P.C. were initiated on the basis of a complaint filed by Shri Inderjit Singh Bhopa Rai, (hereinafter referred to as the `complainant’) which was instituted before the Superintendent of Police, Solan, and sent to the SHO, Dharampur who after inquiry prepared a report under Sections 107, 145, 150 Cr.P.C. and sent to the Court of the Sub Divisional Magistrate for trial. 3. The allegations were that the complainant had purchased land measuring 5-7 Bighas in the year 1999 from Smt.Usha Devi (hereinafter referred to as the `petitioner’) and her brothers, sister and mother for which sale deed was executed between seller, (complainant) and his sons S/Shri Jagdeep Singh and Anoop Singh on 9.2.1999. There is a double storeyed house existing on a part of this land in which the petitioner, her son Umesh Kumar alias Rinku and one Smt.Kaushlya Devi were residing. Later on she entered into an agreement to vacate and handover the possession of the house to the complainant for a sum of Rs.4,50,000/- and the articles in the house were purported to have been sold for 17,700/- rupees. The complainant urged that he had paid the entire amount by cheque dated 11.10.2007. The case pleaded is that after the petitioner delivered possession of the house 3 to the complainant, she started residing on rent in the house of one Shri Raju. On 9.11.2007 when the complainant had gone to Chandigarh for solemnization of the marriage of his daughter, the servant of the complainant informed him that on 23.11.2007 the petitioner entered the house and started living therein after throwing out the belongings of the respondent herein. The matter was accordingly reported to the police with the report that there was apprehension of breach of peace. 4. Notice was issued to the petitioner herein who submitted her reply stating that on the basis of agreement dated 11.10.2007 she never vacated the disputed premises/building. It was the result of misrepresentation and fraud practiced on her on fabricated documents. She stated that the value of the property is more than Rs.12 lacs and not Rs.4,50,000/- which amount she is willing to return to the complainant. She pleaded that she never took any house on rent. In a nutshell the case was one of complete denial except for the fact that receipt of consideration of Rs.4,50,000/- was admitted and that the agreement was the outcome of fraud etc. 5. The complainant examined ten witnesses in support of his claim which included five police officials. He also preferred an application under Section 311 Cr.P.C. for additional evidence which was allowed. He appeared as PW-1 and stated that he had 4 purchased a two storeyed house for a consideration of Rs.4,50,000/- from the petitioner. In the transaction, the petitioner’s son Rinku and aunt Smt.Kaushlya had concurred and agreement to this effect was executed on 11.12.2000 which was attested by Shri Vikram Raj Sharma in the presence of the husband of the petitioner Shri Sukhvinder Singh and one Lachhman Singh. The amount was stated to have been paid by him through Cheque No.489521, dated 11.10.2007 in the presence of Shri Het Ram. On receipt of this consideration, the possession of the disputed premises was handed over to him on 12.10.2007 and he and his family started residing in this house on 13.10.2007. He proved on record Ex.PW- 1/B, Ex.PW-1/C and Ex.PW-1/D being photographs showing them to be in possession of the property. Affidavit of Umesh Kumar son of Smt.Usha Devi was proved on record as Ex.PW-1/E registered sale deed, Ex.PW-1/F agreement to sell and affidavit for `No Objection’ of shifting the electric meter Ex.PW-1/H. 6. PW-2 Het Ram son of Shri Nandia Ram stated that the petitioner and the complainant had entered into an agreement etc. and a sum of Rs.4,50,000/- was paid as cost of the house and Rs.17,700/- for the cost of articles lying inside the house. This transaction was entered into in his presence and so was the consideration amount. PW-3 Ramesh Kumar was the cook with the complainant and was being paid Rs.2,500/- per month. He also supports the case of the complainant. 5 The petitioner appeared as RW-1 and stated in her examination that the complainant had agreed to purchase the house for a sum of Rs.12 lacs, out of which Rs.4,50,000/- has been paid in advance, and the balance money was agreed to be paid in cash because the complainant did not want to disclose this amount to the Income Tax Department. She states that after the execution of the payment she did not vacate the house and that Ex.PW-1/E, which is a registered sale deed, was executed by her. It is the price which was the flashpoint. 7. On the evidence on record, the Magistrate came to the conclusion that barring her statement and that of Balak Ram, who is her brother, she could not prove her continuous possession. She also could not establish that the sale consideration was Rs.12 lacs and the reasons as to why only Rs.4,50,000/- has been mentioned in the sale agreement. The Court accepts the evidence led on behalf of the complainant to the effect that the petitioner had forcibly occupied these premises. 8. A Revision Petition was instituted in the Court of the learned Sessions Judge, Solan, on a number of points. The Court affirmed the findings of the Sub Divisional Magistrate. The conclusion as summarized were that the double storeyed house, which is a disputed premises, is in the names of complainant Inderjit Singh Bhopa Rai, his sons Jagdeep Singh and 6 Anoop Singh and that a dispute arose when the petitioner executed an agreement Ex.PW-1/E to sell the house for a consideration of Rs.4,50,000/- which infact was received by her. On the basis of two exhibits i.e. Ex.PW-1/E sale deed and Ex.PW-1/F agreement to sell, the learned Court held that the petitioner had in fact vacated the house and handed over its possession to the complainant. As to the house having been sold by way of registered sale deed, the Court did not find any infirmity in the evidence of the complainant. It holds the testimony of the witnesses as reliable as they corroborated each other on material point. Revision Petition was accordingly dismissed. 9. Learned counsel challenges this order on a number of grounds, primary being that the evidence recorded has not been properly appreciated, the Sub Divisional Magistrate has not recorded objective satisfaction and has not mentioned that there is any existence of actual or apprehended breach of peace likely breach to occur, the promised consideration of Rs.12 lacs being not paid and most of all that any apprehension of breach of peace exists. He placed reliance on a number of judgments. 10. He places reliance on the judgment of this Court in Balak Ram vs. Rasil Singh and Others, 2009(2) S.L.J.(H.P.) 929. He further places reliance on the judgment of the Supreme Court in Bhinka and Others vs. 7 Charan Singh, AIR 1959 SC 960. In particular emphasis is placed by learned counsel on the following dictum:- “16. This leads us to the consideration of the legal effect of the order made by the Magistrate under S. 145 of the Code of Criminal Procedure. Under S. 145 (6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, (1901) 29 Ind App 24, 33, tersely states the effect of orders under Sec. 145 of the Code of Criminal Procedure thus: "These orders are merely police orders made to prevent breaches of the peace. They decide no question of title … … … … … … … … …" We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of 8 the parties cannot enable a person to resist the suit under S. 180 of the Act.” (p-966) 11. This is the settled law and requires no reiteration. He urges that dispossession having not been established, the Court acted beyond jurisdiction in ordering restoration of possession. Reliance is placed on the judgment of the Sikkim High Court in Tshering Wangchuk Bhutia and Others vs. Naksingh Bhutia and Others, 1983 Cri.L.J. 1904. I need not delve on this aspect any further as I find that the Courts have rightly held on the evidence on record that the respondent was forcible dispossessed. 12. To similar effect is the decision of the Rajasthan High Court in Gajendra Singh and Another vs. State of Rajasthan and Others, 1995 Cri.L.J. 2133, where the Court holds that the main object of Section 145 is to decide with respect to actual physical possession. Some other decisions referred may also be taken note of. Learned counsel submits that the mere fact that a dispute exists which was of a civil nature and in this case, relating to the actual consideration or right to possession under civil law is not sufficient to invoke jurisdiction of the statutory authorities under Section 145. He places reliance on the judgment of the Delhi High Court in Smt.Renu Sachdeva vs. Commander B.S. Rekhi and Others, 1985 Cri.L.J. 688. He also relies upon the decision of the 9 Supreme Court in Lophinoris Shangpling and others vs. Hamboy Shullai and another, 2001 Cri.L.J. 2943 holding:- “5. On a perusal of the evidence for the first respondent given before the Executive Magistrate we are of the opinion that no proceedings under Sec.145 of the Code can continue in respect of the disputed property. First respondent has admitted in his evidence thus:- “It is a fact that on 26.8.1997 I no longer stay at Jaiaw pdeng within the disputed land.” (p-2944) 13. What I find is that this decision is distinguishable on facts. I need not enter into multiplication of the precedent as the principles urged by learned counsel appearing for the petitioner are by now well established by law. 14. Learned counsel appearing for the respondents refers to the decision in R.H. Bhutani vs. Mani J. Desai, 1968 SC 1444 to urge that the satisfaction as recorded by the Magistrate is final and in these circumstances it is not open to the revisional Court to enter into this controversy further. 15. On the evidence on record I cannot find any perversity in the findings of the learned Sessions Judge that the respondent had been dispossessed from the premises. In fact the findings of both the Courts below that he has in fact been dispossessed are based 10 on proper appreciation of evidence. I find from the proceedings before the Magistrate that he has recorded categorically that there was apprehension of breach of peace and therefore jurisdiction under Section 145 was invoked to prevent such a situation. I have gone through the material on record. I do not find the contention urged on behalf of the petitioner to the effect that there has been no forcible dispossession as being substantiated on the record. 16. Learned counsel appearing for the respondents has raised the preliminary point on the maintainability of the petition. He submits that this Court, in exercise of its revisional power or jurisdiction under Section 482 Cr.P.C. will not/can not re-appreciate or re-assess the evidence unless there is such a glaring illegality appearing on the evidence of the record that no reasonable person can come to that conclusion. He submits that the Magistrate as also the learned Sessions Judge were within their jurisdiction to pass the impugned order. He submits that even where a person has a right to possession, but when he takes the law in his hand, would amount to act of dispossession. He relies upon the decision of the Supreme Court in R.H. Bhutani vs. Miss Mani J.Desai and others, AIR 1968 SC 1444 holding:- “9. The satisfaction under sub-s. (1) is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his 11 discretion which, no doubt, has to be exercised in. accordance with the well recognised rules, of 1aw in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. 14. The word "dispossessed" in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession but taking the law into his hands make' a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession: [cf. Edwick v. Hawkes, (1881) 18 Ch D 199 and Jiba v. Chandulal, AIR 1926 Bom 91]. Sub-section (6) of Section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law. In AIR 1926 Bom 91 (supra) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance 12 of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or deemed possession under the second proviso. Similarly, in A. N. shah v. Nageswara Rao, AIR 1947 Mad 133, it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under Section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under Section 145. The second proviso to sub-section (4) and sub-section (6) contemplate not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession : [of. Subarna Sunami v. Kartika Kudal, ILR (1954) Cut 215 = (AIR 1954 Ori 183)]. It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under section 145 and give directions permissible under sub-section (6). (pp-1448-1449) 13 17. Adverting to the complaint, what I find is that the complainant has given a vivid description of the manner in which he was dispossessed and requested for assistance from the police. On this, an inquiry was made by SHO who says that the complaint is genuine, there is danger to the person and property of the complainant as also the breach of peace/public tranquility. In the notice issued by the Sub Divisional Magistrate there is a specific recital to the effect which says that after considering the entire material on the record the Court is satisfied that the complainant is a quarrelsome and aggressive person, there is danger to the life, property of the respondents and all possibility of breach of peace and public tranquility. This should be a complete answer to the submission made on behalf of the petitioner that the order is not based on the satisfaction of the Magistrate who seeks to enforce the provision of criminal law against the petitioner. Considering the totality of the facts and circumstances of the case, I hold that the findings of fact arrived at by the Court below are not such which can be classified as perverse. The case is squarely covered by the ratio in R.H. Bhutani’s case (supra). 18. In these circumstances, this petition is dismissed. It will be open to the parties to have their rights adjudicated in Civil Court of competent jurisdiction where it will be open to them to urge all 14 such points which they may choose to advance in favour of their respective stand. This judgment only decides on the question of possession in terms of Section 145 Cr.P.C. and does not predicate the right of the parties. No order as to costs. August 26, 2011. (Dev Darshan Sud) (aks) Judge.