Daulat Ram etc. vs Smt. Shanti Devi

D.B. Lal, J.—This is a revision directed against the judgment of the Sessions Judge, Mahasu, upholding in revision an order of the Sub-Divisional Magistrate, Solan whereby Daulat Ram and others have been restrained from interfering in the possession of the Respondent Shanti Devi of a portion of second storey which was in her actual occupation and in respect of which a dispute arose u/s 145 of the Criminal Procedure Code. The facts of the case are that Shanti Devi being widow of the predeceased son of Daulat Ram was in possession of a defined portion of a house occupied by all of them as a family mansion. It was the case of Shanti Devi that Daulat Ram and others had dismantled one verandah, latrine and bath-room occupied by her and thus interfered in her possession. Accordingly the proceeding started u/s 145 of the Code of Criminal Procedure. The parties were asked to put in written statements and affidavits in support of their respective claims. The learned Magistrate considered these written statements and affidavits, and held that Shanti Devi was disposessed from a: portion of the house, within two months next before the date of his order and hence she should be deemed to be in possession on such dates. Accordingly he declared that Shanti Devi was entitled to. remain in possession. and the Petitioner-Respondents Daulat Ram and others were forbidden to distrub her possession until she was evicted in due process of law. Since she was found in, possession two months next before the date of the order, she was restored the possession ,of the verandah, latrine and the bath-room.

Daulat Ram and others came in revision before the learned Sessions-Judge, but there too they failed and the order of learned Magistrate was confirmed. However, they have come up in another revision before, the High Court.

It is contended on behalf of the learned Counsel that the parties were in joint'' possession and therefore no proceedings- could be initiated u/s 145. The learned Counsel seems to have fallen into -an error as he considered a case of joint ownership as one of joint possession. It is a different matter that all the parties claim joint ownership , but the definite allegation of Shanti Devi had been that she was in exclusive possession over a defined portion of the house. The mere putting forward of a case of joint possession by one party while the other party claims exclusive possession does not take the matter out of the- purview of Section 145 Criminal Procedure Code. As long as there is a dispute relating to a property which is likely to cause a breach of the peace and the possibility of declaring one of the parties to be in actual possession is there, the requirements of Section 145 are satisfied. Otherwise, all that one of the parties need do to secure the termination of the proceeding is to plead joint possession. This would defeat the very object of Section 145. Thusfrom the evidence on record, the learned Magistrate, and so the learned Sessions Judge, were rightly satisfied that Shanti Devi claimed ''exclusive possession and as she was disturbed from that possession and there was likelihood of breach of peace, the jurisdiction to proceed u/s 145 was very much there and the proceeding was rightly initiated.

It was then contended by the learned Counsel that admittedly the verandah, latrine and bath-room were dismantled and that being so the learned Magistrate could not have ordered for the restoration of that portion of the building,. In that connection, the learned Counsel relied on a jugdment of this very court in Criminal Reference No. 14 of 1967 decided on 26th,June, 1968. Following the ratio of that decision, I consider that the order of the learned Magistrate need be modified to the extent that1 Daulat Ram and others are not asked to restore the dismantled) portion. of the house. Shanti Devi has to take possession of the portion of the house as such which was formerly in her. occupation.

The learned Counsel then submitted that a certain civil suit had started between the parties for recovery of money. The plaint written statement and some other documents relating to that suit were filed by respective parties. According to learned Counsel, these documents were not duly proved. The learned Sessions Judge has taken the view that when both the parties admit the execution of such documents and also their contents, if any of such documents was not strictly proved in accordance with law it would amount to a mere irregularity which should not vitiate the whole proceeding. I entirely agree with his reasoning. It was for the Magistrate to have considered the written statements and the affidavits submitted by the parties. The documents filed were in support of these written statements and affidavits. It is not shown by the Petitioners that in the absence of such documents nothing could be inferred in favour of the Respondent-petitioner Shanti Devi so far as she could be held to be in possession of a portion of the house. It is a question of appreciation of evidence which need not be gone into in revision. Even otherwise she was found in exclusive possession and the finding cannot be assailed on any such ground. It is not every violation of a mandatory provision that vitiates a proceeding u/s 145 when such a matter comes up in revision before a High Court. The essential condition is that the alleged violation of a procedural law would only warrant interference if a failure of justice has been the result [see: Koul Ram v. Rattan Dassi 1971 S.L.J. (H.P.) 112].

Thus, for the reasons stated I do not find any compelling reason to take a different view and dismiss the revision petition. However, the order of the learned Magistrate is modified to this extent that ''the Respondents 1, 2 and 3 (Daulat Ram and others) shall not be tasked to re-construct the dismantled portion of the verandah, latrine or bath-room, but they have to restore possession of this portion only in its present form. The rest of the order of the learned Magistrate is confirmed.