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Kanta Devi Vs. Raj Kumari and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1985CriLJ262
AppellantKanta Devi
RespondentRaj Kumari and anr.
Excerpt:
- - clearly postulates that the magistrate has only to decide, if possible, whether any and which of the parties was on the date of the preliminary order in possession of the subject of dispute. it is only when genuine difficulties arise that a magistrate can, for good reasons recorded in writing decide that it is not possible for him to decide which of the contending parties was in possession of the subject of dispute on the date of the preliminary order......the will to support her claim to ownership as also possession. she herself appeared as a.w. 3. the learned magistrate in his final order dt. 29-7-1983 has mentioned that the aforesaid three witnesses had supported the claim of kanta devi to be in possession of the house. on the side of raj kumari respondent, five witnesses were examined and the sixth one was raj kumari herself. according to the learned magistrate, all those have supported the possession of raj kumari. he disposed of the matter in the following words :in this case the will is a material document which the first party claims as genuine which is being disputed by the 2nd party. the first party smt. kanta devi has a strange claim of being a baptised sister of the deceased who died issueless. the claim of the 2nd party of.....
Judgment:
ORDER

M.M. Punchhi, J.

1. Formally admitted. To be disposed of simultaneously.

2. The bone of contention between the parties is House No. 150, Street No. 4, Mohalla Vish-Karma, Yamuna Nagar, District Ambala Its owner was one Gian Chand. He died on 10-4-1982. While he was alive, the house was in his possession. Allegedly, he was a widower and died issueless. The petitioner Kanta Devi claimed herself to be his sister by conduct (described by the Courts below as baptised sister). She also claimed to be in possession of the house after the death of Gian Chand on the basis of a will dt. 25-2-1982. A copy thereof appended with this petition discloses that her residential address given therein was also of the'same house. Respondent No. 1 Raj Kumari claiming herself to be the grand-daughter of Gain Chand laid claim to the house as also its possession. This led to proceedings Under Section 145, Cr.P.C. at the instance of Kanta Devi petitioner before the Sub-Divisional Magistrate, Jagadhri. The Sub-Divisional Magistrate passed a preliminary order Under Section 145(1), Cr.P.C. Thereafter, written statements were filed by the parties and evidence was led by them in support of their claim. The petitioner produced A.W. 1 Buti Ram, a neighbour, to support her case. She also produced A.W. 2 Mohan Lal, one of the witnesses of the will to support her claim to ownership as also possession. She herself appeared as A.W. 3. The learned Magistrate in his final order dt. 29-7-1983 has mentioned that the aforesaid three witnesses had supported the claim of Kanta Devi to be in possession of the house. On the side of Raj Kumari respondent, five witnesses were examined and the sixth one was Raj Kumari herself. According to the learned Magistrate, all those have supported the possession of Raj Kumari. He disposed of the matter in the following words :

In this case the will is a material document which the first party claims as genuine which is being disputed by the 2nd party. The first party Smt. Kanta Devi has a strange claim of being a baptised sister of the deceased who died issueless. The claim of the 2nd party of being the grand-daughter of the deceased has also not been proved to the hilt. I have not been able to find out as to which of the two parties was in actual physical possession of the house in dispute on the date of preliminary orders. Accordingly I find it expedient in the interest of justice to refer the parties to civil Court to get their possession decided. Accordingly, it is ordered that status quo be maintained and the parties may get their possession decided in the civil Court.

3. The petitioner challenged the order before the Additional Sessions Judge, Ambala. He expressed the view that the impugned order did not suffer from any infirmity and was legal and just. Consequently, the revision petition was dismissed. Now the petitioner has approached this Court to invoke its jurisdiction Under Section 482 of the Cr.P.C. bemoaning that to leave the matter in such a situation was nothing but an abuse of the process of the Court and had led to injustice.

4. Parties counsel have been heard at length. They are one on the point that the house for the present stands locked and the key is with the Station House Officer of Police Station Jagadhri awaiting to be handed over to the party found entitled to possession. It is also agreed that during the pendency of the proceedings, the key had remained with the said Station House Offier but after the passing of the order of the Sub-Divisional Magistrate, it had been handed over to Raj Kumari respondent which led to the reinitiation of proceedings Under Section 145, Cr.P.C., which had the effect of restoring the key back to the Station House Officer. In the meantime, the petitioner claims that she had filed a suit for declaration that she was owner in possession of the house in dispute and had sought injunction from the civil Court restraining Raj Kumari respondent from interfering in her possession.

5. The preliminary order of the learned Magistrate is not under challenge. It is only his later view. Sub-section (4) of Section 145, Cr.P.C. clearly postulates that the Magistrate has only to decide, if possible, whether any and which of the parties was on the date of the preliminary order in possession of the subject of dispute. Though a discretion is left with the Magistrate to decide the question of possession, if possible, but the duty cast on him is not perfunctory in nature. The Code does not permit lack of interest in the dispute. It is only when genuine difficulties arise that a Magistrate can, for good reasons recorded in writing decide that it is not possible for him to decide which of the contending parties was in possession of the subject of dispute on the date of the preliminary order. At that stage, it is open to him to pass an order Under Section 146, Cr.P.C, to attach the subject of dispute, until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Of course, if he has earlier thereto at any statge attached the property in dispute, he can continue the attachment till a competent Court has determined the rights of the parties thereto. But nowhere does the Code provide an order of the kind which was passed by the learned Magistrate ordering status quo to be maintained be passed. It is not apparent from the orders of the Courts below as to whether any attachment was existing at any stage of the proceedings. None seems to be intended in the impugned order. So on this aspect, there obviously seems to be an abuse of the process of the Court.

6. The evidence led by the parties has been hinted at earlier. The learned Magistrate has said that the respective witnesses of each party have supported the possession of each of them. No reasons have been assigned by the learned Magistrate how he has not been able to find as to which of the two parties was in physical possession of the house in dispute. The evidence had to be weighed by the learned Magistrate critically and properly. He could have discarded the evidence of one side and adopted that of another. He could have discarded evidence of both sides for valid reasons. But the scope of inquiry before him being limited had to confine only to possession. Apparently, he got entangled to the title dispute between the parties. That was not his domain and was rightly for the civil Court. I find no reason disclosed in the impugned order why he shrank away from giving a positive finding and kept the question of possession hanging in air by ordering status quo to be maintained. The course adopted, to my mind, is an abuse of process of Court.

7. For the view taken on the nature of the orders of the learned Magistrate, the objection taken by the learned Counsel for the respondents that after the dismissal of the revision petitiofn Under Section 482 of the Cr.P.C. would not lie, is meaningless. This Court is required to put back to rails process of Court which gets derailed.

8. For the foregoing reasons, this petition succeeds. The order of the Sub-Divisional Magistrate as also that of the Additional Sessions Judge, are set aside and the matter is remitted back to the learned Magistrate to decide the question of possession forthwith on the existing evidence on the record Parties through their counsel are directed to put in appearance before him on 25-9-1984. The arrangement of keeping the key shall continue to abide by the decision of the learned Magistrate for which necessary directions will be made by him.


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