JUDGMENT
Bhole, J.
1. The original applicant, who had initiated proceedings under section 145, Criminal Procedure Code in respect of the possession of Room No. 20, First Floor, Chawl No. 52, Beg Mohammed Chawl, Umar Rajab Road, Bombay, has come here in revision of the order passed by the learned Addl. Chief Presidency Magistrate, Mazgaon, Bombay. The applicant was residing in the said room with his wife Fatimabi for over 40 years. He knows the respondent, whose father was residing in another room in the same building. The applicant was usually visiting Haji Malag. On 14-3-73 when his wife was ailing, he was absent from this room and his wife died. The respondent was there and it is the applicant’s complaint that the respondent disposed of the dead body of his wife before he arrived there.
2. The respondent, who is a bus conductor, had developed friendship with the applicant and his wife and by playing a confidence trick obtained the applicant’s signature on a stamp paper. The stamp paper is actually a transfer affidavit filed by the applicant before the learned Presidency Magistrate, Mulund on 27-2-73. It is now the complaint of the applicant that after the death of his wife and after disposing of her body the respondent had illegally usurped the room and has deprived him of the possession of the said room. He therefore, sent a complaint to the police a day after his wife died viz. 15-3-73. A preliminary order on the necessary affidavit as well as the documents filed by both the parties was passed on 11-5-73 when the application was made and the notices were issued to the parties.
3. The respondent has also filed a written statement and the affidavit sworn by the applicant transferring the premises to the respondent’s name on 27-2-73. The respondent’s case is that the applicant and his wife had treated him as their son and that the applicant had renounced the world, had become a Fakir and was at Haji Malang. He was not even taking care of his wife when she was ill and that he was taking care of the applicant’s wife. According to him because the applicant had transferred the room therefore, he is in possession of the same.
4. Both the parties have filed several affidavits. The learned Magistrate appears to have been more influenced by the transfer affidavits filed on behalf of the respondent. On relying on the same he found that the applicant was not in possession of the room on 14-3-73 and that on the other hand, the respondent was in possession of the same. Accordingly therefore, he declared that the respondent was in possession of the room and that his possession should not be disturbed by the applicant. The applicant was also asked to pay a sum of Rs. 25/- as compensation to the respondent. This order of the learned Addl. Chief Presidency Magistrate is being challenged here. The only point, therefore, that arises here for consideration is whether this order is according to law.
5. The applicant has filed five affidavits of his neighbours in the same building and they have all supported his case. According to them the applicant was in possession of the disputed room and that the body of the applicant’s wife was disposed of in hurry by the respondent and that he had usurped the room for his benefit. The respondent according to the affidavit is residing elsewhere. The applicant has also produced a certificate of the child born to the respondent’s wife on 1-11-72 at a different address. He has also produced the electoral roll of the civic election as well as that of the assembly election. They also show that the respondent was not living in the disputed room at all and that on the other hand he and his family were living elsewhere. On the other hand the respondent has produced the affidavit sworn by the applicant himself on 27-2-73 regarding the transfer of the tenancy rights to him. He has also filed some receipts which show that the room in question is in the Chawl belonging to the Municipal Corporation. He has produced some receipts issued by the Municipal Corporation on 7th June, 73, showing that the room was transferred by the Municipal Corporation to the respondent. He has also filed four other affidavits in support of his case. Only one of the deponent lives in the building in which the disputed room is situate and the other affidavits are by the persons who live in different buildings. Now, therefore, the point is whether the learned Magistrate has considered or has not considered all these documents and the affidavits, which were filed by the parties. After reading the judgment of the learned Addl. Chief Presidency Magistrate it appears to me that he has not considered all the documents and the circumstances of the case. The learned Magistrate considered only the affidavit of the applicant by which he transferred his tenancy rights to the respondent. According to the learned Magistrate that itself shows that the respondent is residing in the said room because the respondent has also said that he was living with the applicant and his wife and their son for the last five years. About the electoral roll the learned Magistrate says the respondent’s father might be residing on that address. In fact the electoral roll shows that not only the respondent but also all the members of his family including his wife, children and father were living at a separate address.
6. Admittedly the applicant was living with his wife in the disputed room for over 40 years. He was also going to Haji Malang perhaps for his own business viz. of selling Kababs and also as a pilgrim. At the time when his wife died on 14-3-73 the applicant was not present. The affidavit filed by the applicant of his neighbours show that the respondent disposed of the body of the applicant’s wife in hurry at 2-30 p.m. although the applicant was away. The applicant came at about 5 p.m. and found to his horror that his wife was buried in his absence. It is the complaint of the applicant that on that very day the respondent trespassed and started claiming the room to be his. Therefore, he immediately complained to the police that the respondent is harassing him and has committed trespass in his room. There is another telling circumstance about the frame of mind of the applicant on 27-2-73 when it is alleged by the respondent that the applicant had transferred the tenancy of the disputed room to him by an affidavit before the Magistrate. The respondent himself in his affidavit says that when he went to the applicant at Haji Malang and requested him to accompany him to the room the applicant told him that until and unless ordered by Haji Malang Baba he will not return. In fact that was also according to the respondent the say of the applicant on 26-2-73 a day before the transfer of tenancy. It appears, therefore, that in that frame of mind the applicant was brought before the Magistrate and was asked to affirm the affidavit as regards the transfer of tenancy. The transfer affidavit, therefore, will have to be taken in the background of these circumstances. Merely because there is this transfer affidavit it cannot be said that the respondent must be in possession on 14-3-73 when the applicant’s wife died. In fact actually the transfer of name appears to have been made by the Municipal Corporation long after 14-3-73 viz., on 7th of June, 73. Therefore, even the Municipal Corporation authorities acted on the transfer affidavit, which was filed only on 7-6-73. We are here concerned with the actual possession of the parties on 14-3-73.
7. Therefore, the applicant admittedly was living in the disputed room along with his wife for 40 years. His wife died in the same room on 14-3-73. In the absence of her husband who was at Haji Malang her body was disposed of. The applicant returned at about 5-30 p.m. to find that his wife’s body was disposed of by the respondent. He was not even allowed to see his wife. The birth certificate of the child of the respondent shows that the child was born in Chawl No. 52-25 on 1-11-72. This place is different. The electoral roll of the civic election also shows that the respondent was living in Chawl No. 6 on 20th December, 1972 The claim of the respondent that he was staying in the disputed premises for five years before the death of the applicant’s wife is therefore belied. The assembly electoral roll also shows different address. Now, therefore, considering the birth date certificate of the respondent’s child, the municipal electoral roll as well as the assembly roll it is clear that the respondent could not have been living in the disputed room. He has not produced any letters or the ration card or any other document to show that he was living in the disputed room. The transfer affidavit filed by him also does not show that the respondent got the possession of the same immediately but if merely showed that he had consented to the transfer of the tenancy. In fact as mentioned earlier the transfer was recorded in the municipal record only on 7-6-73 long after the death of the applicant’s wife in the same room and after this dispute was started by the applicant. On the other hand the applicant and his wife admittedly were staying in the said room. His wife died on the day from which the respondent claims that he was in possession of the room. The applicant returned from Haji Malang on that day to notice that after the death of his wife he was being dispossessed of the room and his belongings there. There are affidavits of the neighbours to show that he was living with his wife there and that the respondent had buried the dead body of the applicant’s wife in hurry and was claiming the room. All these circumstances, therefore, show that the applicant was in possession of the room on 14-3-73 and not the respondent.
8. The learned Advocate for the respondent, however, says that in a revision this Court cannot interfere with the order of the learned Magistrate. I, however, find that the learned Magistrate, instead of considering all the documents and the affidavits on record merely considered the electoral rolls and the transfer affidavits and not the other documents filed by the parties. There are other circumstance also on record and the learned Magistrate did not consider them at all. Therefore, all this has vitiated his conclusion.
9. I, therefore, allow this revision application and set aside the order passed by the learned Magistrate and declare that the applicant was in possession of the room viz. Room No. 20. First Floor, Chawl, No. 52, C.S. 1549, Beg Mohammed Chawl, Mohammed Umar Rajab Road, Bombay-8 and he is entitled to retain such possession until ejected by due process of law. I also direct that the respondent shall not disturb the possession of the applicant. The order as regards costs is also set aside. The respondent shall pay Rs. 100/- as costs to the applicant. Rule absolute.
