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2022 Supreme(J&K) 184
In The High Court of Jammu and Kashmir and Ladakh at Srinagar
Sanjay Dhar, J.
Muhstaq Ahmad Mir and Others – Appellant
Versus
Mst. Khatijja – Respondent
CRMC No.197/2013
Decided on : 27-6-2022
Appearing Counsel:
For the Petitioner(s):Mr. M. A. Qayoom, Advocate with Mr. Shafaqat Nazir, Advocate
For the Respondent(s):Mr. G. A. Lone, Advocate with Mr. Mir Majid Bashir, Advocate
IMPORTANT POINT : Inherent powers of High Court under Section 482 of Cr.P.C. cannot be invoked so as to circumvent legal bar to filing of a second revision petition as engrafted in Section 397(3) of Cr.P.C.
Headnote:
Code of Criminal Procedure, 1973 – Section 145 – Trespassing into property – Imminent chance of breach of peace – Defect in making preliminary order in instant case has not resulted into any prejudice to petitioners – Inherent powers of High Court under Section 482 of Cr.P.C. cannot be invoked so as to circumvent legal bar to filing of a second revision petition as engrafted in Section 397(3) of Cr.P.C. – Inherent powers under Section 482 of Cr. P. C should be exercised sparingly with great circumspection in order to prevent abuse of process of court and to secure ends of justice – Merely because revision petition has been rejected by Revisional Court, this Court is not debarred from entertaining petition under Section 482 of Cr. P. C against impugned order passed by Magistrate if it finds that there has been miscarriage of justice or that ends of Justice would be secured by interfering in order passed by Trial Magistrate – Magistrate cannot just brush aside material placed on record by parties by simply stating that from a perusal of same he is not able to make out as to who was in possession of property – Magistrate has to form his opinion after critically examining affidavits produced by parties – Mere filing of a civil suit cannot operate as a stay of proceedings under Section 145 of Cr. P.C. because these proceeding are preventive in nature but matter will be different if prior to initiation of proceedings under Section 145 of Cr.P.C, a civil suit has been filed by one of parties regarding subject matter of case – Petition allowed. (Paras 13, 14, 15, 19, 23, 24, 29, 32, 34, 35 and 36)
Judgment :
The petitioners have challenged orders dated 28.03.2012 and 15.06.2012 passed by the Chief Judicial Magistrate, Sopore (hereinafter referred to as the trial Magistrate) as also order dated 01.10.2013 passed by the Principal Sessions Judge, Baramulla (hereinafter referred to as the Revisional Court).
2. It appears that predecessor-in-interest of the respondents, Mst. Khatija, had approached the trial Magistrate by way of an application under Section 145 of the J&K Cr.P.C alleging therein that on 17.02.2012 the petitioners herein had forcibly trespassed into the property bearing Plot No.28 (40x80) under Survey No.13/1-min situated at New Colony, Sopore and when the same was objected to by Mst. Khatija and her relatives, the petitioners herein dragged and thrashed her. On the basis of these assertions, it was pleaded that there is imminent chance of breach of peace and, as such, proceedings under Section 145 of the Cr. P. C be initiated against the petitioners herein. It was claimed by the predecessor-in-interest of the respondents before the trial Magistrate that the property in question (residential house) was allotted by the Housing Department of Jammu and Kashmir Government to one Ghulam Ahmad Ganai in the year 1967, who died unmarried, issueless and intestate on 05.04.2006. The predecessor-in-interest of the respondents claimed to be the sister of deceased Ghulam Ahmad Ganai and according to her, entry in the revenue record was made in respect of the said property in her name after the death of the original allottee. It was her further case before the trial Magistrate that the petitioners herein are strangers and that they have no right either to possess or claim title over the property in question.
3. The learned trial Magistrate passed a preliminary order on 28.03.2012 and, after issuing notice to the petitioners herein, directed the parties to file affidavits and documents to substantiate their respective claims.
4. It appears that the petitioners herein filed written statement/objections to the application, wherein they claimed that Mst. Khatija, predecessor-in-interest of the respondents, has never been in possession of the property in question and as a matter of fact, the original allottee, the maternal uncle of mother of the petitioners, had put them into possession of the said property during his life time. According to the petitioners, Mst. Khatija, despite being sister of the original alltotee, did not take his care but it was petitioner No.1 who took care of the deceased allottee. It was further contended that in the year 1994, the original allottee handed over possession of the property in question to petitioner No.1 whereafter petitioner No.3, with the consent of petitioner No.1, started to reside in the said residential house along with his family for about five years. It was further claimed that petitioner No.3 constructed his own residential house and shifted there, whereafter the property in question remained in peaceful possession of petitioner No.1 even after the death of the original allottee on 05.04.2006. It is claimed that petitioner No.1, who is running the business of electronic and electric goods, has stored the items relating to his business in the said house and this was never objected to by the predecessor-in-interest of the respondents. In short, the petitioners claim that Mst. Khatija, the sister of the deceased allottee, has never come into possession of the property in question and right from the year 1994, the petitioners have been in possession of the said property with the consent of the original allottee on the basis of an oral will executed by the original alltotee in their favour.
5. In their pleadings before the learned trial Magistrate, reference has been made by the parties to legal proceedings that have taken place between them before different Revenue Courts. It appears that after the death of the original allottee, concerned Tehsildar has, vide mutation order No.978, dt.26.0
