[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.391 OF 2008 Mr.Vijay Dattatray Jagvekar ..Applicant Vs. Mr.Uttamchand Sawalchand Jain and Anr. ..Respondents ... Mr.Shekhar S.Bhide advocate for applicant Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : AUGUST 28, 2008 DATE : AUGUST 28, 2008 DATE : AUGUST 28, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicant. 2. This revision arises out of an order passed by the learned Sessions Judge under Section 145 of Cr.P.C. There was a dispute in relation to middle room situated at 81/83, ‘B’ North Block Street, 3rd Kumbharwada, Dr.M.G.Mahimtura Marg, Mumbai-400004. The Respondent had preferred an application under Section 145 of Cr.P.C. before the learned Magistrate. The said application came to be rejected. Being aggrieved thereby, the Respondent preferred revision before the Sessions Court. By order dated 7.4.2008, the revision came to be allowed. It was held that the applicant therein i.e. the present respondent was in de facto [-2-] possession of the disputed premises on 15.10.2006, hence, the respondent i.e. the present applicant was directed to restore the possession of the premises to the applicant i.e. the present respondent. Being aggrieved thereby, the present revision has been preferred. 3. It is an admitted fact that one Brahmadin Somai Rambux Kahar was in possession of the disputed premises. Both the applicant and the respondent no.1 are claiming possession of the said premises through Brahmadin. The respondent no.1 has examined himself as well as Brahmadin. The evidence of Brahmadin, the document of Deed of Assignment and Letter of Surrender lead to the conclusion that the respondent no.1 was in possession on the date of assignment of the premises and surrender i.e. on 4.9.2006. 4. The applicant is also claiming possession through Brahmadin. In support of this contention, reliance is placed on a leave and licence agreement executed between Brahmadin and the present applicant. The said agreement is at Exhibit-D-1. On perusal of the said agreement, it is seen that [-3-] it was executed on 4.9.2002 and the agreement was to remain in force only for a period of 11 months commencing from 1.9.2002. Thus, it is seen that agreement expired on 30.8.2003. No evidence has been brought on record to show that the said agreement was extended or that any fresh agreement was entered into between Brahmadin and the applicant. Moreover, it may be stated that the original of the said leave and licence agreement was neither produced by the applicant nor got proved by him as per the provisions of the Evidence Act. The applicant has not examined himself, whereas, the respondent no.1 has examined himself as well as Brahmadin. The evidence of the respondent also shows that he was in possession of the premises. Thus, the respondent has proved the legal possession of the disputed premises by examining himself, producing documents in his possession and by examining predecessor-in-title i.e. Brahmadin. All these lead to the conclusion that the respondent was in possession of the premises at the relevant time. 5. The learned advocate for the applicant submitted that there is no apprehension of breach [-4-] of peace and hence, the learned Sessions Judge ought not to have passed the impugned order. Dispute of possession of immovable property and likely breach of peace are the factors to initiate the proceedings under Section 145 of Cr.P.C. After the proceedings are initiated, the learned Magistrate after looking into all the facts and the evidence, would proceed to pass an order. Any party who is aggrieved by order of the Magistrate, would challenge the same before the Sessions Court. When such an order is challenged before the Sessions Court, the Sessions Court can only see whether such order is correct, proper and legal. 6. The learned advocate for the applicant has placed reliance on the decision of the Supreme Court in the case of Shanti Kumar Panda V. Shanti Kumar Panda V. Shanti Kumar Panda V. Shankuntala Devi; reported in (2004) 1 S.C.C. Shankuntala Devi; reported in (2004) 1 S.C.C. Shankuntala Devi; reported in (2004) 1 S.C.C. 438 438 438. The learned Sessions Judge has right considered the evidence and the facts and also the decision in the case of Shanti Kumar (supra) and thereafter passed the impugned judgment. 7. Looking to the facts of this case, no case is made out for interference, hence, revision [-5-] application is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]