Kanniammal vs Periya Thannasi

Suryamurthy, J.—This is a criminal revision petition against the order passed by the learned Sub Collector and Sub Divisional Magistrate, Dindigul under S. 145(6) of Criminal Procedure Code that the respondent herein will be in possession of the land until such time at the competent authority decided the dispute regarding the possession of the property. The A-party before the learned Magistrate who is the petitioner in the Court claims to be in possession of 3.90 acres in survey number 434 of Periammapatti village, Palni Taluk, as a cultivating tenant, under one G.D. Narendran through Rahmathulla. Periya Thannasi, the first respondent herein also claims to be in possession as a cultivating tenant under the same landlord. The learned Magistrate had inspected the land, ahd had come to the conclusion that the first respondent herein is in possession. This conclusion, she has arrived at by making some local enquiries. The learned Magistrate was not justified in relying on facts gathered by her by making what she calls "local enquiries". The persons whom she had interrogated in the course of such local enquiry might have been biased one way or the other and her knowledge itself regarding possession might not have been based on what they had known directly and personally, but on what they might have heard. That is why in proceedings in a court of law only statements made by witnesses on oath who can be cross-examined by the party opposite to the party calling the witness can be used as evidence. Bazaar rumors cannot be called evidence in any sense of that word and cannot be relied on for deciding the rights of parties.

The learned Magistrate has observed that "the crops have been raised by Periya Thannasi" and that "this is obvious as C.P.I. ''B'' party is in actual physical possession of the land." She has not given any sound reason for coming to the conclusion that C.P.I of ''B'' party is in actual physical possession of the land. The mere fact that the revision petitioner, Kanniammal, is residing in a shed situate in a neighbouring land does not go to show that she is not in possession of the land in dispute. The possession of a land by a person can only be such possession as the land is capable of. If it is a house the party claiming possession may be expected to reside there or have the house under lock and key. In the case of a cultivable land, a party can be in possession only by raising crops. The question who raised the crops can be decided only after ascertaining who was in actual physical possession. The learned Magistrate has come to the conclusion that the crops have been raised by Periya Thannasi, because he is in actual physical possession of the land. For coming to this latter conclusion she had no evidence, oral or documentary before her except the vague statements of the anonymous persons whom she teems to have interrogated in the course of a local enquiry of a roving nature.

This conclusion of the Learned Magistrate is all the more erroneous, because on the date of her enquiry and at the time of her passing the order now impugned, there was a decree passed by the learned District Munsif of Palni in O.S. No. 955/73 interdicting the respondents herein from interfering with the possession and enjoyment of the land by the revision petitioner. The civil courts are the final authorities to adjudicate upon civil rights. The first respondent would appear to have contended before the Learned Magistrate that the mere finding of the District Munsif is not sufficient to prove possession. The Learned Magistrate ought not to have entertained any such contention. In any event, the learned Magistrate cannot pass an order which is violative of the injection decreed by the Civil Court.

In the proceedings under S. 145, Cr. P.C. the decree of injunction passed by a civil court must be respected by the Magistrate concerned. The possession of the decree-holder in whose favour a decree for injunction had been passed, must be protected by the Magistrates, if necessary by taking recourse to proceedings under S. 107, Cr. P.C., or S. 144, Cr. P.C. against the defendant or defendants who had lost in the civil court and against whom a decree is in force.

It is contended by the learned counsel for the revision petitioner that the learned Subordinate Judge of Dindigul before whom an appeal preferred by the respondents herein is pending has granted a stay of the operation of the decree for injunction granted by the trial court. Even at this stage, I am constrained to point out that this kind of stay orders are meaningless. If it is a decree for possession, an interim stay can be granted pending disposal of the appeal, or even pending disposal of the interlocutory application for stay. But, to grant an interim stay ex parte in the case of a decree for injunction is merely a mechanical approach to the problem by observing the rule of first-come-first served. By granting an interim stay the party who lost the suit in the trial Court would only be encouraged to trespass upon the land and try to take possession. When the trial Court has gone into the facts thoroughly and has granted an injunction, an ex parte interim stay is not to be granted lightly.

However, the interim order of stay of the operation of the decree for injunction does not have the effect of setting aside the finding of the trial Court that the plaintiff was in possession. Therefore, the Magistrate ought to have respected the finding of the trial Court and sustained it. Proceedings under S. 107 and S. 144, Cr. P. C. against the respondents herein would have sufficed to prevent a breach of the peace. The learned Magistrate has no jurisdiction to pass an order that would render nugatory the decree of the Civil Court.

This view of mine is reinforced by the decision of Narasimhan, C.J., in Banamali Mohapatra Vs. Bajra Nahak and Others, wherein the learned Chief Justice held that-

In a case of this kind the successful party in the Civil litigation must be maintained in possession and any attempt to interfere with his possession should be prevented only by taking recourse to proceedings under S. 107 or S. 144, Crl. P.C. if it becomes necessary. But, the starting of a proceeding under S. 145, Crl. P.C. between parties who had already fought out litigation in the civil court would, to quote the words of Khawaja Mohamed Noor, J., in Rajendra Narayan Bhanja Deo Vs. Cahudhuri Chintamani Mahapatra, at p. 152 encourage defiance of the Civil Courts and paralyse the administration of justice.

In the instant case if the respondents, despite the decree for injunction against them, claim to be in possession, they can be in possession only in defiance of the decree and are therefore, liable to be proceeded against for contempt of court on an application by the revision petitioner. The order of the learned Magistrate directing that the respondents herein shall be in possession cannot be sustained. The revision petition is, therefore, allowed and the order of the learned Magistrate is set aside.