- (1.) The present case depicts a very sad story. It shows how the local police joined hands with respondent No. 3, a man with money-power and Sub-Divisional, Magistrate, Nagina District Bijnor, respondent No. 2 fell in their trap. The learned Magistrate accepted the case of respondent No. 3 and the police report as true and in exercise of power conferred by law initiated proceeding under Section 145, Cr.P.C. attached and appointed receiver in respect of a shop in question and consequently dispossessed the petitioner from his rightful possession.
(2.) The facts of the case emerging from the materials on record may be stated thus: Raja Ram, the predecessor of the petitioner was a tenant in respect of a shop situated at Mahala Muglan, Kasba and P.S. Nagina, District Bijnor. Respondent No. 3 is the owner of the said shop and in order to evict the tenant therefrom, he moved the Small Cause Court by filing SCC suit No. 90 of 1985. During the pendency of the Suit, Raja Ram died and the present petitioner, being his son was substituted in his place. The suit was ultimately decreed and order of eviction was passed. Feeling aggrieved by the judgment and order, the petitioner preferred revision bearing SCC Revision No. 42 of 1994. The learned Additional District Judge, Bijnor upon hearing the parties allowed the revision by judgment and order dated 23/07/1999 and remanded the case to the Court below for fresh decision in the light of the observation made therein. After the case was remanded, respondent No. 3 expressed that he did not wish to proceed with the case and consequently, the case was dismissed by order dated 1st Dec. 1999 with costs. He had, however, the evil design to evict the petitioner by hook or by crook. As the suit for eviction was a long drawn process he adopted a novel method and moved an application to the S.D.M. Nagina for initiating a proceeding under Section 145, Cr.P.C. Local police concealing truth submitted report recommending to initiate proceeding and to attach the shop. On the basis of the said recommendation, the Magistrate initiated proceeding under Section 145, Cr.P.C. by order dated 29/06/2001. On the next day respondent No. 3 filed another application for attachment, on receipt whereof the Magistrate passed order on the same day to attach the shop in question and directed the police to appoint a third party receiver on consent of both the parties. All these happened when the civil Court remained closed on account of summer vacation. After reopening of the Court the petitioner filed civil suit No. 493 of 2001 for permanent injunction restraining respondent No. 3 from interfering with his possession of the above disputed shop. The Court by order dated 2nd July, 2001 directected both the parties to maintain status quo and not to change the nature and character of the suit property. However, on the very day, SHO, Nagina being armed with order of attachment passed by the Sub-Divisional Magistrate broke open the lock of the shop in question and made inventory of the movables, dispossessed the petitioner from his lawful possession and kept the shop in the custody of two persons, namely, Vinay Veer Prakash Jain and Yogesh Kumar Kalra.
(3.) The case of respondent No. 3 in his counter-affidavit is that, since there was talk of compromise between him and the petitioner, the tenant, he withdrew the suit and agreed to accept the rent deposited by the petitioner. Finally compromise was effected and the shop in question being very old and dilapidated and not fit for carrying out any business, the petitioner vacated the premises on accepting a sum of Rs. 50,000.00 and executed a memorandum of transfer of possession in presence of two witnesses. But later on, he developed ill motive to grab the property and threatened to take forcible possession for which he had no other alternative but to approach the Magistrate for initiating a proceeding under Section 145, Cr.P.C. In the rejoinder affidavit, the petitioner has refuted the assertion of respondent No. 3. Challenging the genuineness of the memorandum of transfer of possession which respondent No. 3 has sought to use as a trump card in support of his possession, he has urged that in the petition filed for initiating proceeding under Section 145, Cr.P.C. no mention was made about existence of the aforesaid document and also the compromise to have been effected out of Court. Till passing of the preliminary order under Section 145(1) and order of attachment under Section 146, Cr.P.C. the aforestated document was not brought on record nor any reference thereof was made by the learned Magistrate in his orders. He has emphatically urged that the document in question was fabricated in collusion with and S.H.O. Nagina P.S. to concoct the present case. He denied to have entered into compromise out of Court and vacated the house in question where had his running business. He asserted that unable to evict him through legal process, respondent No. 3 cooked up this case in collusion with the Sub-Divisional Magistrate, Nagina and the local police and got him illegally evicted from the shop.;