Vinod Vohra and Anr. vs Puran Bhagat Nanda

This reference arises out of proceedings under section 145 Cr P. C. The disputed property consists of two rooms ; one, in the basement, and

the other, ia the form of a Barasati in the second floor, of a house situated in Purani Mandi, Jammu. The proceedings were initiated on 22121976

at the instance of Sh. Puran Bhagat Nanda (hereinafter called 'the applicant). His case was that he is an employee of the Government. At the

relevant time he was posted at Kathua. He had carried his family and was residing there. He had locked the disputed rooms from outside. The

rooms contained his personal belongings. On 2211, 1976 Mst. Vinod Vohra and Ram Lubhaya Vohra (hereinafter called 'the nonapplicants')

without any right or title broke upon the locks, removed all his belongings and occupied the rooms. He was informed of the incident on telephone

by S/shri Manohar Lal Kapoor and B, L Bhatnagar. On 23 11 1976 he reached and found the rooms occupied by the non applicants. On seeing

him, the nonapplicants threatened him with dire consequences if he attempted to get into the rooms. The applicant alleged that there was every

likelihood of breach of peace had he entered the rooms in order to regain the possession. The learned Magistrate felt satisfied that a dispute

existed as regards the possession of the rooms in question which was fraught with danger of breach of peace. The applicants filed their written

statement and denied that the applicant was ever in possession of the disputed rooms. They asserted that the said rooms had continued to be in

their actual physical possession since a long time On evidence the trial Magistrate found that the disputed rooms had devolved upon the applicant

under a will from his father and that the said rooms continue to be in his possession through his tenants Shiv Rattan Kumar and Bod Raj till the

nonapplicants forced their entry into the rooms on 22111976 by breaking open the lock while the applicant was away at Kathua. On finding this

he declared the applicant to be in possession of the disputed rooms and directed restoration of possession to him and forbade interference until he

was evicted in due course of law. The nonapplicants applied for revision The revision was heard by the Additional Sessions Judge, Jammu. He has

recommended that the order passed by the trial Magistrate be set aside and that, he should be asked to refer the dispute for adjudication to a civil

court of competent jurisdiction under section 146 Cr. P. 0. While doing so, he has observed t

There is absolutely no denial of the fact that the property in dispute was in possession of Late N. D. Nanda father of the two contesting parties till

his death through his tenants. Both the petitioner as well as the respondent are admittedly the only heirs of Late N. D. Nanda and therefore entitled

to the ownership of the disputed property unless and until one of them gets a right of exclusive ownership and possession determined by a

competent court. The trial magistrate has exceeded his juristion in deciding the question of possession on the merits of the claims of the parties to a

right to possess the property in dispute.

In his application dated 22111676 the respondent has pleaded that on 22111976 he was informed that Smt. Vinod Vohra had tress passed and

occupied the property in dispute while he was posted at Kathua about 90 K. ms. from Jammu. He has taken recourse to the present proceeding

on 22121976 i.e one month after the alleged dispossession. The alleged dispossession however wrong was a subject of civil dispute and the

proper remedy in law available to the respondent was for recovery of the possession through the law of Specific Relief. The recourse to getting his

right and title to the suit property determined through criminal proceedings u/s 45 Cr. P C is therefore totally uncalled for. It is well settled law that

dispossession however wrongful it may be has a civil remedy and the criminal courts should not ordinarily exercise their jurisdiction u/s 145 Cr. P.

C. unless the dispute is of such a nature which involves endangering of public peace.

The trial court had scanty evidence regarding the factual of exclusive possession by either parties and therefore it has strayed into deciding the

question of the title and deciding the dispute on the basis of 'Title follows possession.

The respondent had to establish the 'will' by obtaining a declaration from a civil court. The 'will' requires a proof u/s 67 and 68 of the Evidence Act

and u/s 59 and 63 of the Succession Act and apart from this it was ineffective without taking a letters of administration.

It has been held in AIR 1937 Cal : 595 that:

Letters of administration are an absolute necessity in case of a 'will' and until probate is taken out letter of administration granted effect cannot be

given to the terms of the 'will'.

Consequently the respondent P. S. Nanda is not entitled in law to make any exclusive claim on the petitioner's deceased parent's estate without

getting this 'Will' proved as required by law, From the record it appears that the respondent did in fact apply for the probate and the letter of

administration of the 'Will' in the court of District Judge Jamunu on 11675 and subsequently withdrew it on 481975 as determined by the certified

copies of the applications filed by the petitioner). This also goes to show that he was certain of getting his ""Will' proved in these proceedings by

giving it a color of a dispute and thereby escape the payment of court fees and other proceedings. Apart from this, there is also much force in the

argument that the learned trial magistrate has acted with gross irregularity in presuming the possession of respondent P. B. Nanda on the basis of

'Agreements of leave and license of Karan Kumar and Dr. B. R. Shaima. They documents are not duly stamped and as such are not admissible in

evidence for any purpose under proviso 6 to Sec. 35 of the J&K St. mp Act and therefore cannot be held to be a conclusive proof as relied by the

learned trial Magistrate.

The final order passed by the learned trial magistrate is silent about a finding on the breach of peace. It is for this obvious reason that the

proceedings which started on 22121976 and continued till 19121977 had become civil proceedings and there was no likelihood of breach of

peace

The first ground of reference by the Additional Sessions Judge is that in deciding the matter, the trial magistrate has followed the principle of

'possession following the title'. In this he has not correctly appreciated the judgment of the trial court the controversy before the trial court was

whether it was one party or the other which was in actual physical possession of the disputed rooms at the relevant time. Each party had boldly

alleged and led evidence to prove that it was in possession to the exclusion of the other. For a proper appreciation of the evidence on the question

of possession it naturally became necessary for the trial magistrate to have a peep into the antecedent history of title and possession. That

incidentally brought in the will relied upon by the applicant. The trial magistrate found that having regard to the antecedent history of title and

possession the evidence regarding possession led by the applicant had merit in it whereas the same could not be held to be true about the evidence

led by nonapplicants. In the circumstances it can not be seriously contended that the trial magistrate has decided the question of possession on the

principle of possession following the title'. The first ground has no merit in it.

The next ground of reference by the Additional Sessions judge is, that since the dispossession, however wrongful, was completed before the

preliminary order was passed, there was no longer any dispute on the date of the order and consequently section 145 Cr. P. C; did not apply and

the entire proceedings including the final order were without jurisdiction A similar argument was raised in the case of R H. Bhutani Vs. Miss Mani

J.Desai and ors (A I.R. 1968 S. G : 1444). The Supreme Court repolled the argument observing :

This reasoning would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession and

completes his act of dispossession, the party so dispossessed cannot have the benefit of section 14J. as by the time he files his application and the

Magistrate passes his order, the dispossession would be complete and, therefore, there would be no existing dispute likely to cause breach of

peace, Such a construction of Section lo, in our view, is not correct for it does not take into consideration the second proviso to sub section (4)

which was introduced precisely to meet such cases. The magistrate has first to decided who is in actual possession at the date of his preliminary

order. If, however, the party in defacto possession is found to have obtained possession by forcibly and wrongfully dispossessing the other party

within two months next preceding the date of his order the Magistrate can treat the dispossessed party as if he was in possession on such date,

restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. The

proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible

to say that such an act of dispossession was completed before the date of the order. To say otherwise that if a party who is forcibly and wrongfully

dispossessed does not in retaliation take the law into his hands, he should be at disadvantage and cannot have the benefit of section 145.

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 makes a forcible entry otherwise than in due course of law, it would be a

case of both forcible and wrongful dispossession: (of Edwick v. Hawker's, (1881) 18 Ch D 199 and Jiba V. Chandulal, AlR 1926 Bom 91).

Subsection (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 (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 injunction restraining disturbance 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 disposed 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

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 subsection (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

Sunawati V, Kartika Kudal.

AIR (1954) Cut 215 (AIR 1954 Cr. 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 there under do not mean that the Magistrate could not proceed under

section 145 and give directions permissible under subsection (6)

These observations are equally applicable in the present case. The second ground too has no merit in it.

The third ground of reference by the Additional Sessions Judge is that the 'will' could not be relied upon unless a probate was taken out or a

letter of administration was granted on the basis thereof. There is nothing on the record to show that any objection was taken to the admissibility of

the 'will' on this ground in the trial court. That apart, the 'will' was pressed into service for the collateral purpose of proving the source of

possession. It was not relied upon to obtain the relief for title. Therefore, merely because probate had not been taken out on the basis, of the will it

could not be ignored in the present proceedings. The third ground also fails.

The last ground of reference by the Additional Sessions Judge is that the arguments executed by the tenants were not properly stamped and

could not therefore be admissible in evidence. The well settled principle is that once a document has been received in evidence and exhibited

without objection by the other party then it does not lie in the mouth of that party at any subsequent stage of the proceedings to contend that the

document is not admissible in evidence. There is nothing on the record to showthat any objection was taken in the trial court with regard to the

admissibility of the agreements on the ground that they were not properly stamped. On the above principle in such objection could be taken in

revision. The last ground too is therefore misconceived.