The proper determination of possession under Section 145 CrPC and the importance of following the procedures outlined in Section 145(4) and 146(1) CrPC for securing possession.

M.L. MEHTA, J.

1. The petitioner filed this petition under Section 482 CrPC seeking assailing the order dated 15.12.2008 of the SDM, Karol Bagh, New Delhi under Section 145 CrPC.

2. The facts necessitating the disposal of the present petition are that a Kallandra under Section 145 CrPC was presented by the SHO, DBG Road to SDM on 23.5.2000 alleging the apprehension of breach of peace in respect of property bearing No. F-22, DBG Market, Karol Bagh regarding which both, the petitioner as well as the respondent No. 2 Sanjeev Hans were claiming to be in possession based on certain documents. Both the parties were leveling allegations against each other. The respondent No. 2 Sanjeev Hans assailed the said Kallandra by filing Crl.M.(M). 2490/2000 in this court, wherein the following order came to be passed:

“The only grievance of the petitioner at this stage when the kalandra has been sent by the SHO to the SDM for conducting of the proceedings under Section 145 CrPC is that the SHO has requested the SDM to return the findings as to the ownership and possession of the property over which different claimants are staking their claim. Since scope of Section 145, CrPC is limited to possession of the suit property, the observation made by the SHO in the Kalandra requesting the SDM to decide the ownership will be of no relevance so far as the proceedings under Section 145, CrPC , being undertaken by the SDM are concerned. SDM shall only confine his findings over the possession of the premises”.

3. Subsequent to aforesaid order of this court, the SDM conducted enquiry and passed an order dated 20.2.2008. In the enquiry that was conducted by the SDM, both the parties filed different sets of documents claiming themselves having purchased the said property from its landlord J.K.Dutta. The respondent No. 2 Sanjeev Hans had also brought to the notice of the SDM that he had also filed a suit for specific performance etc. against Mr.Dutta vide Civil Suit No. 267/2003.

4. The main plea that was set up by the respondent No. 2 Sanjeev Hans was that he had made payment of some money by way of two receipts to Mr. Dutta, one of which was of 29.12.1996 and the later was not executing the sale deed and that led him to file the aforesaid civil suit.

5. On the other hand, the set of documents which were filed by the petitioner herein comprised of Agreement to Sell, Indemnity Bond, Undertaking, GPA, SPA dated 10.1.1997. The SDM observed that both the parties have paid certain amount of money at different periods of time for buying the property in question from Mr.Dutta. He noticed that however, from the documents which were filed by the petitioner herein, actual physical possession of two rooms of the First Floor were given by Mr. Dutta to the petitioner’s father. It was also the case of the petitioner that the respondent Sanjeev Hans has dispossessed them in the year 2000 i.e. sometimes before the filing of Kallandra. On account of all this uncertainty, the SDM ordered the property to remain sealed till the competent court decides the rights of the parties.

6. The aforesaid order dated 20.2.2008 was taken in appeal by the respondent Sanjeev Hans before the ASJ, who vide order dated 29.9.2008 remanded the matter back to the SDM to record a finding of possession of the premises and to restore the possession of the premises to the respondent Sanjeev Hans. The learned ASJ observed that the SDM has neither followed the procedure laid down under Section 146 CrPC nor he acted in accordance with the provisions of Section 145(4) CrPC. Consequently, he set aside the order dated 20.2.2008 of SDM and remanded the case to SDM with the direction to record his findings in accordance with law and in the meanwhile, to restore the possession to the respondent Sanjeev Hans (petitioner therein).

7. In the remand proceedings, the learned SDM vide impugned order dated 15.12.2008 restored the possession of the premises to the respondent Sanjeev Hans. The learned