Gurunath Pillai ("A" Party) vs State of Madras and Another

Ramaswami, J.—This criminal revision petition is preferred against the order made by the Additional First Class Magistrate of

Kumbakonam in M.C. No. 2 of 1951 directing that the properties involved in Section 145, Crl. P. C. be attached u/s 146, Crl. P. C.

The short facts are: The question which fell to be considered by the Additional First Class Magistrate was as to who was in possession of

Section No. 457/3 after 20-4-1950 on 9-3-1951 that is whether the field had come to be in the possession of Veerappa Chettiar or had

continued to remain I the possession of Kandaswami Pillai.

The learned Additional First Class Magistrate has discussed in paragraph 14 of his judgment the reasons for his inability to be satisfied as to

who was in possession of the property. The learned Magistrate after setting out the evidence adduced before him on this point has stated:

The oral evidence let in by both sides to prove possession after 20-4-1950 is thus unreliable and unworthy of being acted upon. in fact the Sub-

Inspector of Police, P. W. 9 stated in reply to a question from the court that he had no Idea when he asked for orders u/s 144, Crl. P. C. as to

who had raised the crop on the land and that both parties claimed to have raised that crop.

In other words, the learned Additional First Class Magistrate found that it was a case where two sides were scrambling for possession and that he

was unable on the evidence on record to satisfy himself whether the one party or the other was in effective possession on the crucial date.

Jurisdiction to attach arises only when adjudication is impossible, that is to say when the Magistrate is unable to satisfy himself as to which of the

party was in actual possession. Inability to find must be after full enquiry as has been in this case. See -- ''In re Somnath Madhvji'', 6 Bom LR 723

(A); -- In Re: Sanganbasawa, 7 Bom LR 18 (B); -- ''Neelamegam Pillai v. Mooroogappa Mudely'', 2 Weir 110 (G); -- ''In re Mukhoda Dossee'',

18 WR Cr. 4 (D); -- ''Mansar All v. Matiullah'', 8 Cri. LJ 202 (Cal) (E); -- ''In Re Venkataraman v. Emperor'', A. I. B. 1930 Bom 172 (F); -- ''

Brij Pal Singh and Another Vs. Ram Naresh Singh and Others, ''Parandhamayya v. Virayya'', 1930 Mad WN 771 (H); -- ''Joyantikumar v.

Middleton'', 27 Cal 785 (D; -- ''Thakurcharan v. Shital Chandra'', 14 Cal WN (J); This provision is not meant to relieve the Magistrate from the

duty of deciding on merits and which has not been the case here. There is no obligation on the Magistrate to make independent enquiry if parties

given opportunities have not adduced clinching evidence as to possession. -- Bengali Parida and Others Vs. Banchhanidhi Panigrahi, . There is no

such invariable rule that Justice must ultimately be done. Cases occur where a matter is left in doubt and real Justice is not done. It is inadvisable

that in following such a will-o-the wisp as absolute justice parties should be put to enormous expense and the time of Magistrates should be wasted

-- Debi Datt Tewari Vs. Emperor, . In fact it is to meet such contingencies namely where the parties scramble for possession and seek to establish

their version by unreliable and manufactured evidence that Section 146, Crl. P.C. has been enacted. The -- ""Katras Jherriah Coal Co. v.

Sibkrishta Daw and Co,'' 22 Cal 297 (M); -- ''Sadar An v. Abdul Karim'', 5 Cal WN 710 (N); -- ''Alagirisami Naidu v. Chinna Veerammal'',

AIR 1949 Mad 461 (O). In such cases the Magistrate has merely to wind up the proceedings before him by attaching and leaving it open to both

parties to approach the civil court and obtain reliefs.

Therefore, the only point in this case which has to be considered is whether the Magistrate was merely trying to evade from discharging his

duties or whether he was unable really to decide possession one way or the other. There can be no doubt that in this case both these parties,

veteran litigants, who seem to have a long record of dispute between them, have gone in for a scramble for possession. But each has been brought

to a standstill by the other as it was a case of Greek meeting Greek. The result was adduction by both sides of equally doubtful and equally

dishonest evidence.

Therefore the Magistrate could not But decide that he was unable to satisfy himself and I see no reason to hold that he took an abbreviated view

of his own functions. The order of the lower court is correct and I decline to interfere. In dismissing this petition, I am comforted by the thought that

the appellant before us was only a lessee for one year and has lease period has also expired.