VINOD K.SHARMA,J - (1.) THIS revision petition is directed against the order dated 21-9-2006 passed by the learned Additional Sessions Judge, Jalandhar, vide which appeal filed by the respondent against the order dated 21-10-2005 passed by the learned Sub Divisional Magistrate, Jalandhar, has been accepted.
(2.) APPREHENDING dispute qua the immovable property, the Kalandra under Section 145 of the Code of Criminal Procedure was drawn by the Sub Divisional Magistrate, Jalandhar-l. After the parties were allowed to lead evidence, the learned Sub Divisional Magistrate came to the conclusion that the possession of the disputed shop was taken from Nirmal Singh by the Police and Hardeep Singh has failed to show any evidence regarding his ownership. Therefore, he had no right to take possession and it was ordered the possession of the disputed property be handed over to Nirmal Singh. Appeal was filed against the order passed by the learned Sub Divisional Magistrate, wherein the learned Additional Sessions Judge has been pleased to record the following findings :- "8. The learned Lower Court has held Nirmal Singh to be the owner of the suit property. Although no specific document has been referred in the operative part of the order under appeal, but it appears that learned lower Court has held Nirmal Singh to be owner of the disputed shop on the basis of sale deed dated 5.1984 Ex. RW3/A. However, the perusal of the said Sale Deed reveals that vide this Sale Deed Nirmal Singh had purchased one house having old municipal No. 1079 and having Nos. 1691, 1692 and 1693 (5 Marlas) from Kesar Singh. There is no reference of the shop in dispute i.e. 1694 in the said sale deed. Moreover, the Mutation on the basis of this Sale Deed regarding land measuring 5 Marlas has already been sanctioned in favour of Nirmal Singh. Had Nirmal Singh purchased the disputed shop, then the Mutation would have been sanctioned in his favour regarding land measuring 10 Marlas. It is affidavit Ex. RW3/AA in which Nirmal Singh has alleged that due to inadvertence the new number 1694 was not incorporated in the sale deed. Even if this contention of Nirmal Singh is held to be correct even then he should have applied the Revenue Authorities for the rectification of the said Sale Deed, but nothing of that sort has been done by him. Ex.A1 is he copy of Ejectment Petition filed by Nirmal Singh against Waryam Singh in respect of shop No. MCA 1694. The said petition was filed on 29.5.1981. In that petition, a compromise was effected and Nirmal Singh suffered statement which is Ex. A4 on the file to the effect that he has no concern with the disputed shop and that the same has fallen to the share of Balbir Singh, Hardip Singh and Joginder Singh, his brothers and he got that petition dismissed as withdrawn. 9. Admittedly Waryam Singh was the tenant in the suit property for the last many years. Since, there was dispute between the brothers regarding the shop in dispute as to who is to receive the rent from him he filed a inter- pleaded suit on 20.7.1981 and the copy of the petition is Ex.A6. In that case also, a compromise was effected between the parties and the compromise deed was filed in that case and the same is Ex.A7. In that compromise, which is signed by Nirmal Singh also it has been specifically mentioned that he (Nirmal Singh) has no concern with the shop No. MCA 1694 and that the same is owned by Hardip Singh, Balbir Singh and Joginder Singh. It has also been mentioned there that in future Waryam Singh would pay the rent to Hardeep Singh only. Not only this, Nirmal Singh again filed a Civil Suit for permanent injunction regarding the shop in dispute against Hardip Singh on 20.5.2000. Written statement Ex.15 was filed in that suit by Hardeep Singh, but that suit was again withdrawn by Nirmal Singh on 9.8.2003 (Ex.A18) Thus, all the aforesaid facts show that Nirmal Singh is in the habit of filing one case after other against his brother Hardip Singh. He himself has admitted in all these cases that the shop in dispute is owned by the applicant and it is they who are entitled to receive the rent from Waryam Singh. The respondent Nirmal Singh has failed to show when and from whom he took the possession of the shop in dispute. Waryam Singh has been examined by the appellant in this case. He has specifically mentioned that he had taken the shop in dispute on rent from Hardeep Singh and that Nirmal Singh wanted to take forcible possession from him. He has further deposed that he is who remained in continuous possession of shop in dispute till 20.5.2000 and on that date the police illegally locked the shop. He was the best witness to depose about the factum of the possession of the shop in dispute and from the evidence of Waryam Singh and his son Harbhajan Singh and other documents discussed above, it stands proved that Nirmal Singh was never the owner in possession in disputed shop. The learned Lower Court has wrongly held him to be so on the basis of some non-existing documents."
(3.) LEARNED counsel for the petitioner by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Shanti Kumar Panda v. Shakuntla Devi, 2004(2) RCR(Criminal) 881 : 2004(3) Apex Criminal 100, contends that the order passed by the learned Additional Sessions Judge cannot be sustained in law as the petitioner has been merely non-suited on his failure to show his ownership.;