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Adarsh Gupta v/s Bharat Bhushan (dead) & Others

    CRMC No. 97 of 2012 (O&M)

    Decided On, 22 February 2022

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJAY DHAR

    For the Petitioner: Amarvir Singh Manhas, Advocate. For the Respondents: Vishal Kapoor, Advocate.



Judgment Text

1. The petitioner has challenged order dated 01.07.2009 passed by the learned Judicial Magistrate 1st Class, Akhnoor (hereinafter to be referred as learned Magistrate) in the proceedings under Section 145 Cr.P.C. filed by the petitioner against the respondents whereby the application of the petitioner has been dismissed. Challenge has also been thrown to order dated 29.12.2011 passed by the learned Additional Sessions Judge, Jammu (for short, the revisonal Court) whereby the order passed by the learned Magistrate has been upheld in a revision petition filed by the petitioner.

2. Before coming to the present proceedings, it will be necessary to give a brief background of the facts leading to filing of the present petition under Section 561-A of J&K Cr.P.C. (482 Cr.P.C).

3. It appears that the petitioner presented a petition under Section 145 of Cr.P.C. before the Court of learned Chief Judicial Magistrate (CJM), Jammu which came to be assigned to the Court of learned Magistrate, Akhnoor. In the petition, the petitioner claimed that he is owner of a shop situated at Akhnoor which came to his share by way of a memorandum of family settlement dated 06.06.1996. It was further contended that in the year 1979, the said shop was leased out by brother of the petitioner to Satish Chander and Pardeep Kumar by execution of a rent deed, whereafter on 08.07.1980, another rent deed was executed by brother of the petitioner in respect of the shop in question in favour of Satish Chander only, who paid rent of shop to the father of the petitioner upto 31.12.2006. Further case of the petitioner was that on 15.01.2007, Satish Chander handed over the shop to the petitioner. The respondents forcibly put up their locks over the shop in question though shop was already locked by the petitioner. It was alleged that respondents No. 2 and 3 along with some musclemen locked the said shop on 03.06.2007. This was resisted by the petitioner and his other relatives and at the instance of respondents, one of the associates of the petitioner was implicated in proceedings under Section 107/151 of Cr.P.C. It was further alleged that the respondents with the aid and assistance of Police and political support broke open the door of the shop in question and replaced it with a new door. On the basis of the aforesaid assertions, the petitioner claimed that there was apprehension of breach of peace on spot and, accordingly, he prayed for initiation of proceedings under Section 145 of Cr.P.C. before the learned Magistrate.

4. The petition was resisted by the respondents by filing a reply thereto. The case of the respondents before the learned Magistrate was that Satish Chander along with respondent No. 2 is tenant of the shop and they are running the business from the shop under the name and style of M/s Gupta Enterprises Bus Stand, Akhnoor. It was claimed that Satish Chander never surrendered the possession of shop in question to the petitioner. It was also claimed that the family settlement deed is inadmissible evidence. The respondents averred that father of the petitioner used to accept rent upto 04.04.2007 from Satish Chander and respondent No. 2 and he was in knowledge of the partnership between the two. According to the respondents, the petitioner tried to dislodge Satish Chander and respondent No. 2 from the shop with the help of musclemen and he broke open the locks of the shop in question on 03.06.2007 with a view to take forcible possession. However, his attempt did not succeed. An FIR in this regard was lodged at Police Station Akhnoor and after investigation, a challan also stands filed against the petitioner and his associates before the court of learned Magistrate.

5. The parties in support of their respective claims filed affidavits and documents before the learned Magistrate and deponents of these affidavits were also cross-examined. Learned Magistrate, after appreciation of evidence on record including the documents, came to the conclusion that Satish Chander and respondent No. 2 were in possession of the disputed shop at the crucial date and therefore unless they are evicted from the shop in accordance with law, their possession cannot be disturbed.

6. The aforesaid order came to be challenged by the petitioner by way of a revision petition before the Revisional Court. The Revisional Court upheld the findings of the learned Magistrate on the question of possession and declined to interfere in the order passed by the learned Magistrate. Both the orders are under challenge before this Court by way of instant petition under Section 561-A of Cr.P.C.

7. It came to the fore during the pendency of the present petition that respondent No. 1 has expired. The Registry shall make appropriate correction to the cause of the title of the case.

8. I have heard learned counsel for the parties and perused the material on record including the record of the learned Magistrate.

9. Learned counsel appearing for the petitioner has raised two primary contentions before this Court. First that finding of the learned Revisional court that the affidavits by way of evidence filed by the petitioner before the learned Magistrate are not admissible in evidence, is not in accordance with law and second that the learned Magistrate was only vested with the jurisdiction to determine as to who amongst the parties to the proceedings was in possession of the property in question on the crucial date, but instead of doing so, he has recorded a finding that the property in question was in possession of Satish Chander along with respondent No. 2 on the crucial date, though said Satish Chander was not a party to the proceedings. According to learned counsel for the petitioner by holding so, the learned Magistrate has travelled beyond his jurisdiction.

10. As regards, the first contention of learned counsel for the petitioner, it is to be noticed that in the instant case, the petitioner initially presented the petition before the learned CJM, Jammu and the affidavits of witnesses, that were presented along with the petition, were sworn before the learned CJM Jammu. However, the petition came to be assigned by way of an administrative order to learned Judicial Magistrate, Akhnoor. The petitioner did not present any fresh affidavits before the learned Magistrate but he relied upon the same affidavits which he and his witnesses had sworn before the learned CJM Jammu. Learned Magistrate has, in his impugned judgment, held that the affidavits filed by both the parties are admissible in evidence and can be taken into consideration, whereas the learned Revisional Court vide the impugned order has, on the basis of ratio of law laid down by the Supreme Court in its various judgments, held that the affidavits sworn before the learned CJM, Jammu, who was not seized of the matter, are inadmissible in evidence and could not have been considered or relied upon.

11. While recording the aforesaid finding, it seems that the fact that the deponents of these affidavits, that were presented by the petitioners along with the petition, during their examination before the court of learned Magistrate have clearly stated that these affidavits were sworn and executed by them and that contents thereof are correct to their knowledge. So even if it is assumed that the affidavits sworn by the petitioner and his witnesses before the Court of learned CJM, Jammu, who was not seized of the matter, were not sworn in accordance with law, still then the fact that the petitioner and his witnesses have testified to the correctness of these affidavits before the court that was seized of the matter, cannot be lost sight of.

12. On the basis of statements made by the petitioner and his witnesses before the learned Magistrate, as regards, the veracity of the contents of the affidavits sworn by them before the CJM, Jammu, these affidavits can safely be treated to have been sworn by them before the court of learned Magistrate as well. This important aspect of the matter has been ignored by the Revisional Court while holding that the affidavits of the petitioner are inadmissible in evidence. In the face of the aforesaid peculiar facts of the instant case, the ratio laid down by the Supreme Court relied upon by the Revisional Court would not apply to this case. Thus, the finding of the Revisional Court in this regard deserves to be set aside, as the same is not sustainable in law.

13. Now the question arises as to whether the finding of the learned Magistrate as upheld by the revisional court, as regards, the possession of the shop in question on the crucial date is liable to be interfered in these proceedings. Before proceeding to determine this question, it needs to be borne in mind that in the proceedings under Section 482 of Cr.P.C., the Court does not have jurisdiction to re-appreciate the evidence on record. It is only in case the findings of the learned Magistrate are perverse or the same have resulted in failure of justice that this Court would step in.

14. In the instant case, the petitioner claims his ownership and possession over the shop in question on the basis of a memorandum of family settlement deed dated 06.06.1996. The memorandum of family settlement deed is not a document/evidence of possession. It can at best be an evidence of ownership of the shop in favour of the petitioner.

15. The document in the shape of rent deed dated 27.03.1979 shows that the shop in question was leased out to Satish Chander and Bharat Bushan. There is another rent deed dated 08.07.1980 which shows that the shop was leased out to Satish Chander on a monthly rent of Rs. 80/-. There are other rent receipts dated 30.03.2006, 08.09.2006 and 15.01.2007 which show that the shop was under the tenancy of respondent No.2 and Satish Chander. Thus, the documents on record of the trial court show that the delivery of possession of the disputed shop was not made to the petitioner pursuant to the family settlement deed even upto the year, 2007. The documents further show that rent was being paid to the father of the petitioner in spite of the fact that the petitioner claimed to have become owner of the shop pursuant to the family settlement deed dated 06.06.1996. Copy of the challan filed against the petitioner, which is on record of the trial court, shows that the Police after investigation of the case came to the conclusion that the shop in question was in possession of the respondents. In the face of the aforesaid overwhelming material on record, by no stretch of imagination, it can be stated that the finding of the learned Magistrate as upheld by the revisional Court, as regards, the question of possession of the shop in question on the crucial date, is perverse or against law. Thus, there is no scope for this Court to interfere into the said finding of fact.

16. So far as the contention of the learned counsel for the petitioner

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that it was not open to the learned Magistrate to give a finding, as regards, the possession of the shop in question in favour of a person, who was not a party to these proceedings is concerned, the same is without any merit for the reason that in a proceeding under Section 145 of Cr.P.C., a Magistrate is required to make an enquiry with regard to the fact of actual possession of the subject matter of dispute, on the basis of material and affidavits supporting such claims. In the instant case, the learned Magistrate, on the basis of material and affidavits came to the conclusion that the property in question was in joint possession of Satish Chander and respondent No. 2 as they were carrying on business from the said shop in partnership. By recording such a finding, the learned Magistrate has only followed the procedure as provided under Section 145 of Cr.P.C. and came to a certain conclusion, as regards, the actual possession of the subject property on the crucial date. Thus, it cannot be stated that the learned Magistrate has traveled beyond his jurisdiction while doing so. 17. For the foregoing reasons, I do not find any merit in the present petition. The same is, accordingly, dismissed.
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