Through instant Criminal Revision Application, applicants have challenged impugned judgment dated 29.06.2018 whereby while deciding the issue of forcible dispossession, applicants were taken into custody and sentence is undergone with further direction that possession shall be handed over to the complainant.
2. Since it is admitted fact that applicant No.2 was owner and residing in the subject matter apartment she filed suit No.830/201 1 for declaration that basement, specified for car parking, has been illegally allotted in favour of the complainant and such suit is pending for adjudication. Case of the complainant is that applicants alongwith other accused persons occupied that area and forcibly they are using as car parking on that building/apartments.
3. There is no denial to legal position that per Illegal Dispossession Act 2005 owner or occupier , if is dispossessed forcibly , can avail his remedy under Section 3, 4 and 5 of the Illegal Dispossess ion Act 2005. Here complainant says that his chattels are available in the basement area and such basement was allotted to him for using as a dwelling house and it was alleged that chattels of the complainant were removed forcibly and applicants and other inhabitants are using that area for car parking.
4. Prima facie , the case was of use of basement of that building, consisting of ground plus two, as car-parking. The legality or otherwise of allotment of such basement was/is left open to be decided by the competent Court of law where such issue is already pending, however , claimed removal of chattels from basement does not appear to be strictly falling within meaning of forcible dispossession of complainant as it is not the case of complainant that he is being prevented from using basement or is not being allowed entrance. To constitute an offence within meaning of Section 3 of the Act there should not only be an allegation of removal of chattels from a place but dispossession and control thereon are sine qua none. Prima facie , complainant has failed to substantiate the allegations and ingredients of Section 3 of the Act. In absence thereof, order impugned legally cannot sustain. Accordingly instant Criminal the revision application is allowed, impugned judgment is set aside, applicants are acquitted from the charge. Needless to mention that Civil Courts shall be at liberty to adjudicate the civil rights under the Specific Relief Act, if warrants so.