Sadhana S. Jadhav, J. - (1.) HEARD the learned Counsel for the applicant, the learned Counsel for the respondents and the learned APP for State.
(2.) AT the outset, the Counsel for the applicant submits that the original application was filed at Mulund, but since proceedings were part -heard, the matters were transferred to Borivali. The applicant herein had filed an application before the Metropolitan Magistrate, 24th Court, Borivali, Mumbai seeking an action under Section 145 of the Code of Criminal Procedure, 1973. The present Petitioner i.e. original applicant in Case No. 2/N/1994 (old case No. 7/N/1993) had submitted before the Court that he was in actual physical possession of 65 sq. yards of open space, which was described as City Survey No. 845/14, situated at Gupta Plot, Mulund. That the applicant was using the premises for tying his buffaloes. Initially, it was in possession of Sitaram Yadav the plot measuring 5 kunthas. That Sitaram Yadav was in possession of the said property in the capacity of tenant and was holder of licence issued by the Bombay Municipal Corporation for tethering his buffaloes. That Sitaram Yadav wanted to return to his native village and therefore, he had put the applicant into position of the said open space as well as the business to be conducted as a licensee. It was contended by the present applicant that he was put into possession by virtue of Power of Attorney or rent receipt. That the brother -in -law of the applicant was running the coal business in that property.
(3.) IT was alleged in the application that on 5/11/1979 Lalbahadur Yadav who happens to be the present respondent had threatened the original applicant/Petitioner and his brother -in -law and had forcibly dispossessed them of the said property. The applicant had lodged the report at Mulund Police Station as there was likelihood of breach of peace and thereafter, he had approached the Court. It is observed that initially the preliminary orders were passed on 19/12/1979. The respondents were called upon to file their written statement. Accordingly, several applications were filed by both the parties and the matter remained pending till 10/6/1996. On 10/6/1996 the learned Magistrate had allowed the application under Section 145 of the Code of Criminal Procedure, 1973 and had given a declaration that the applicant was in possession of the disputed premises i.e. CTS No. 845/16, Gupta Plot on the date on which the application was filed. It was also ordered that the applicant was entitled to restoration of the actual physical possession of the said premises as contemplated under Section 145(6) of the Code of Criminal Procedure, 1973. The respondent herein was directed to hand over actual physical possession of the said property in favour of the applicant.;