Krishnan and Others vs V.S. Jamal and Another

Natarajan, J.—This petition coming on for hearing on Wednesday, the 16th day of March, Wednesday the 30th day of March, Friday, the

1st day of April 1977 upon perusing the petition and the order of the Lower Courts, and the record in the case, and upon hearing the arguments of

Mr. K. V. Sankaran, for Messrs N. T. Vanamamalai G. Krishnan and M. Dhanasekaran, Advocates for the petitioners and of Mr. I.

Subramaniam Advocate for the first respondent and of Mr. A. Packiaraj, for the Public Prosecutor, on behalf of the State, and the case having

stood over for consideration till this day, the Court made the following Order:

Some members of the B Party, viz., Nos. 1 to 12, 14, 16 to 22 and 24 to 51, in M. C. No. 45 of 1976 on the file of the Judicial First Class

Magistrate No. 1, Tirunelveli, have preferred this revision to assail an order passed u/s 146 (1-B) Cr. P.C. in favour of the A party (the first

respondent herein) in respect of certain lands situate at Velar-kulam village within the limits of Suthamalli Police Station.

2-3. Originally, the police authorities laid information before the Executive Magistrate (Revenue Divisional Officer) that in relation to an extent of

90 acres of nanja lands out of a total extent of 144 acres in Velarkulam village, there was a dispute between the A Party and the B Party and the

dispute was likely to result in imminent breach of peace. The Reveune Divisional Officer passed a preliminary order and attached the land and

appointed the village munsif of the locality to be a temporary receiver and harvest the standing crops on the lands. The dispute between the parties

is a longstanding one and even from the year 1961 claims and counter claims were being made by the rival parties before various authorities for

recognition of their title and right of possession. The settlement authorities, before whom applications were made for issue of ryotwari pattas by

both parties, refused to issue patta to either party and it would appear that appeals are pending before the Estates Abolition Tribunal, Tirunelveli

regarding the issue of ryotwari pattas.

The Revenue Divisional Officer transferred the case to the Judicial Magistrate and, on the orders of the District Magistrate (J), Tirunelveli, the

proceedings were transferred to the file of the Addl. First Class Magistrate No. I, Tirunelveli. As the Magistrate could not come to a definite

conclusion as to who was factually in possession of the disputed lands, he made a reference, u/s 146 (1) of the Code of Criminal Procedure, 1898,

to the District Munsif, Tirunelveli, to give a finding regarding the party in possession. The District Munsif, after hearing both sides, gave a finding

that the A Party was in possession of the disputed extent of 90 acres of lands. On receipt of the District Munsif''s finding, the Magistrate, who

succeeded the Additional First Class Magistrate and whose designation under the new Code of Criminal Procedure had been changed to Judicial

First Class Magistrate, acted in accordance with Section 146 (1-B) of the Code of 1898 and passed an order holding that the A Party was in

possession of the 90 acres of lands under dispute.

Some of the members of the B Party have filed this revision petition to question the correctness of the order of the Judicial First Class

Magistrate. When the revision was taken up for hearing, Mr. I. Subramaniam, learned Counsel for the A Party, raised a preliminary objection

stating that since the order of the Magistrate is in conformity with the direction contained in Section 146 (1-B) of the old Code, the members of the

B Party are not entitled to prefer a revision against the Magistrate''s order and the revisional Court will have to dismiss the revision in limine if it

finds the order of the Magistrate to be in accordance with the findings rendered by the Civil Court.

Mr. K. V. Sankaran, learned Counsel for the petitioners, opposed the preliminary objection raised by Mr. I. Subramaniam and contended that

as a section similar to Section 146 (1-B) is not found in the Code of Criminal Procedure, 1973, there can be no bar to the B Party filing a revision

against the order of the Magistrate, albeit its conformity with the finding of the civil Court, and this Court examining the Magistrate''s order on

merits.

As the preliminary objection raised by Mr. Subramaniam goes to the root of the matter, viz., the very maintainability of the revision, arguments

of both sides were heard on this preliminary point.

In the impugned order of the Magistrate which was passed on 23rd April 1976, the Magistrate has stated as follows:

So, on a careful consideration, I hold that the finding of the learned Additional District Munsif that the A Party is in possession of 90 acres in

Survey No. 2/1 out of 144 acres in Velarkulam village on the date of preliminary order is binding on me (Para 13).

In the result, I declare that the A Party, Jamal and eight others were in possession of the scheduled properties mentioned herein on the date of the

preliminary order and that they are entitled to the possession of the scheduled properties until evicted therefrom in due course of law and

forbidding disturbance of such possession (para 14).

Schedule S. No.

2-1 2-4 7.55 9-6 Total 90

3-22 4-1 7-66 acres (ninety

7-6 7-36 9-1 acres) in Vel-

arkulam village.

Under Sub-section (1) of Section 146 of the Code of Criminal Procedure, 1898 (referred to in short as the old Code) if a Magistrate is of

opinion that none of the parties was in possession or is unable to decide as to which of them was in possession of the subject of dispute, he may

attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to the civil Court of competent jurisdiction to

decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order. Under Sub-section

(1-A) of Section 146, one receipt of any such reference the civil court shall peruse the evidence on record and take such further evidence as may

be produced by the parties and after considering the evidence and hearing the parties, decide the question of possession referred to it. Sub-section

(1-B) inter alia prescribed that on receipt of the finding of the civil court, the Magistrate should dispose of the proceeding u/s 145 in conformity

with the decision of the civil court. Sub-section (1-D) reads as follows:

No appeal shall lie from any finding of the civil court given on a reference under this section nor shall any review or revision of any such finding be

allowed.

Thus, under the old Code, an order of the Magistrate passed in accordance with Sub-section (1-B) cannot be assailed in any appeal, nor can it be

made the subject of consideration in any review or revision. The Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code)

does not contain any inhibition as found in Sub-section (1-D) of Section 146 of the old Code. The precise question for consideration, therefore, is

whether, taking advantage of the provisions of the new Code, the petitioners herein can challenge the order of the Magistrate though it is in

accordance with Sub-section (1-B) of Section 146 of the old Code. Admittedly, proceedings u/s 145 Cr. P.C. were instituted when the old Code

was in force and the reference to the civil court was also made in accordance with Sub-section (1-A) of Section 146 of the old Code. It therefore

follows that if the terms of the old Code are to govern the proceedings throughout, then the present revision cannot be maintained. For deciding the

question whether the old Code or the new Code should govern the case of the petitioners, it becomes necessary to refer to Section 484 of the new

Code. Sub-section (1) of Section 484 repeals the old Code. Sub-section (2) is a saving provision and states that notwithstanding the repeal of the

old Code, if, immediately before the date on which the new Code comes into force, there is an appeal, application, trial, enquiry, or investigation

pending, then such appeal, application, trial, enquiry or investigation shall be disposed of, continued, held or made, as the case may be, in

accordance with the provisions of the old Code, as in force immediately before such commencement, as if the new Code had not come into force.

Mr. Subramaniam, who has raised the preliminary objection, relied on Rana Ramnarain Singh and Others Vs. Mahatha Niranjan Lal and

Others, to point out that Sub-section (1-B) of Section 146 of the old Code left no alternative to the Magistrate but to carry out the decision of the

civil court and, once the Magistrate has done so, the High Court cannot set aside the order in revision, for the Magistrate''s order cannot be said to

suffer from any illegality. His further argument was that the party obtaining a favourable finding from the civil court acquires a vested right to have

the finding accepted by the Magistrate and an order of the Magistrate in terms of the finding immunised it from further judicial scrutiny by means of

revision or review and the acquired right cannot be taken away by any change made in the procedural law related to revision and review. As

authority for this proposition, he cited Damoda Panigrahi and Others Vs. Banchhanidhi Pangrahi and Another, A Division Bench of the Orissa High

Court, which decided that case, held that ""in view of the mandatory provision of Section 484 (2) of the new Cri. Procedure Code, there can be no

doubt that a proceeding u/s 145 of the old Criminal Procedure Code initiated before the commencement of the new Criminal Procedure Code

must be continued and completed, or in other words, disposed of in accordance with the provisions of the old law."" The Bench further observed in

para. 6 that ""it is true that procedural law is generally retrospective, but where rights have determined and become final under the old procedural

law, the provisions of the new procedural law cannot operate retrospectively on such rights; where a part of the old procedure has already been

applied and concluded before the amendment came into force, that part of the old procedure cannot be reopened after amendment and the validity

or operation of any order validly passed or any act validly done by a judicial tribunal under an adjective law for the time being in force cannot be

affected by any subsequent change in the said law"". Yet another case relied on by Mr. Sub-ramaniam in support of his contentions is Hiralal Nansa

Bhavsar and Another Vs. The State of Gujarat, . In that case it was held that out of proceedings included u/s 484 (2) (a) of the Criminal Procedure

Code, 1973, there are proceedings in which certain vested rights are created and such proceedings are required to be disposed of finally in

accordance with the provisions of the old Code and where a Court had already taken cognizance of a prosecution while the old Code was in force

and an order of conviction is recorded after coming into force of the new Code, further proceedings in respect of appeal against the said order of

conviction would be governed by the provisions of the old Code because the right of appeal is a substantive right which accrues to the parties to

the prosecution at the time when the court takes its cognizance.

Mr. K. V. Sankaran, whose attempt was to sustain the revision petition, pointed out that though the proceedings u/s 145, Cr. P.C. had been

instituted when the old Code was in force, still as no revision was pending on the date the new Code came into force, it is only the new Code, and

not the old Code, which should govern the revision petition filed by the petitioners. His further argument was that unlike an appeal, a party to a

criminal action does not have a vested right to file a criminal revision and therefore, the A Party was not entitled to contend that a revision against

the impugned order of the Magistrate should be considered in terms of the old Code and not in accordance with the provisions contained in the

new Code. As authority for the contention that only the new Code will govern the situation, Mr. Sankaran relied on the following cases : Yadaorao

Nathuji Kokude Vs. The State of Maharashtra and Others, and Dildar Khan Vs. State of U.P., Both these cases, which are decisions by single

Judges proceed on the basis that since Section 146 (1-B) has been repealed by the new Code, a revision against an order u/s 145, Cr. P.C.

preferred after the new Code has come into force, is not affected by the inhibition contained in Section 146 (1-B) and the revision will have to be

heard and disposed of in accordance with the terms of the new Code. For the contention that a revision stands on a different footing, Mr.

Sankaran relied on Yadaorao Nathuji Kokude Vs. The State of Maharashtra and Others, where it was pointed out that no vested right of any

party is affected by the changes introduced in the new Code relating to filing of revisions and Dhanraj Jain and Others Vs. B.K. Biswas and

Others, where it was held that a revision application, unlike an appeal, is not a continuation of old proceedings to which it relates, but is an original

application initiating a proceeding, and therefore, where a revision application was filed after the new Code had come into force, it would be the

new Code, and not the old Code, that would regulate the revision.

On a consideration of the matter, I find that the contentions of Mr. I. Sub-ramaniam are well founded and the contra arguments of Mr. K. V.

Sankaran cannot be sustained. Two of the cases relied on by Mr. Sankaran are decided by single Judges, and only Dhanraj Jain and Others Vs.

B.K. Biswas and Others, is by a Division Bench. But of the two cases cited by Damoda Panigrahi and Others Vs. Banchhanidhi Pangrahi and

Another, is by a Division Bench and Hiralal Nansa Bhavsar and Another Vs. The State of Gujarat, is by a Full Bench. That apart, it has to be

borne in mind that as soon as proceedings u/s 145, Cr. P.C. were instituted, the members of the A and B Parties were entitled, as of right, to have

the case disposed of in accordance with the terms of the old Code. When the Magistrate could not form an opinion on the question of possession

and referred the matter to a civil court, the parties acquired a vested right u/s 146 (1-B) and (1-D) of the old Code and the Magistrate was bound

to accept the finding of the civil court and pass an order in favour of the successful party. The settled stage of affairs cannot be disturbed merely

because the new Code has repealed Sections 146 (1-B) and (1-D). In the first place, the saving provision in Section 484 (2) of the new Code will

clearly be attracted to the case on hand, for every appeal, application, trial, enquiry or investigation which was pending when the new Code came

into force had to be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the old Code. When the

petition u/s 145, Cr. P.C. had to be disposed of in accordance with Section 146 (1-B) of the old Code, it necessarily follows that further

proceedings in respect of that petition must also be heard and disposed of in accordance with the provisions of the old Code. That, apart, the

vested right acquired by the successful party before the civil court cannot be said to be lost merely by reason of procedural changes effected in the

new Code. If a contrary view is taken, it will render otiose the expression of the Legislature contained in the saving clause in Section 484 (2) of the

new Code.

I may incidentally point out that the word ''application'' found in the saving clause will take in a revision petition also. The Supreme Court has

pointed out in P. Philip Vs. The Director of Enforcement, New Delhi and Another, that the word ''application'' as used in Clause (a) of Sub-section

(2) of Section 484 of the new Code will take in a revision application made u/s 435 of the old Code.

Mr. Sankaran tried to support the maintainability of the revision petition from another angle. He contended that the preliminary order made

reference only to an extent of 49 acres and therefore, the final order made with reference to an extent of 90 acres cannot be treated as a valid

order and one unassailable u/s 146 (1-D) of the old Code. For this proposition, he cited A.G.V. Subramania Iyer and Others Vs. Pudumadan and

Others, . In that case, Sadasivam, J. pointed out that while a High Court will not be entitled, in revision proceedings, to go into the correctness or

legality or otherwise of the findings of the civil court rendered in a reference made to it u/s 146 (1-B) of the old Code, yet, if the terms of the

reference were wider in scope than what was contained in the preliminary order passed by the Magistrate, the High Court will be entitled to

correct the mistake committed, in a final order based on the findings of the civil court if the property dealt with was greater in extent than that

referred to in the preliminary order. But, in the instant case, it is seen that the Magistrate has, after careful analysis, come to the conclusion that the

preliminary order itself referred to an extent of 90 acres and not an extent of only 49 acres. Though the copies of the preliminary order furnished to

the B party made reference only to 49 acres, the Magistrate has found the original order to refer to 90 acres, as corrected, and not 49 acres alone.

Moreover, the entire 90 acres were attached and placed in the custody of the temporary receiver. The written statement filed by A party also dealt

with an extent of 90 acres and not 49 acres alone. The receiver appointed by the Magistrate had harvested the crops in 90 acres of lands and his

action was not objected to by the members of the B party. The civil court had considered the question of possession with reference to an extent of

90 acres, and not 49 acres alone. It is therefore not open to the B party to contend that the preliminary order referred only to an extent of 49 acres

and therefore, the civil court''s finding with reference to an enlarged extent of 90 acres and the final order of the Magistrate in terms of the civil

court''s finding with reference to 90 acres of lands are not legally sustainable and on that score the B party is entitled to prefer the revision against

the order of the Magistrate.

Yet another contention of Mr. Sankaran was that some of the claimants to the disputed extent of 90 acres have not been parties to the

proceedings u/s 145 Cr. P.C. and therefore, the order passed by the Judicial First Class Magistrate in their absence would not be a valid and

sustainable order. According to him, there are sixteen other claimants and the proceedings are vitiated on account of their non-impleadment.

Except the statement of the petitioners that there are sixteen other claimants who are affected by the order of the Magistrate, there are no materials

to support this claim. Moreover, if there are other claimants, they would have certainly intervened in the proceedings, for it is highly unlikely they

would not have known of the long drawn out proceedings before the Magistrate and thereafter before the civil court. In any event, the alleged

sixteen other claimants would have certainly come to know the proceedings u/s 145 Cr. P. C, when the total extent of 90 acres was attached by

the Magistrate and placed in the custody of a temporary receiver to harvest the crops. Significantly enough, those claimants have not raised protest

to the attachment of lands and harvest of crops in their possession. The indifference exhibited by the so-called claimants militates very much against

the plea of the petitioners herein that third parties to the proceedings are also affected by the impugned order and on that score, at least, the order

should be set aside.

The last of the contentions of Mr. Sankaran was that when proceedings relating to issue of patta are pending before the Tribunal, the

Magistrate ought not to have passed an order in favour of the A party. In support of this contention reliance is placed on Minor Andi v. Kada

Vaithilinga Kona 1976 TLNJ 492. This authority will not apply to the facts of the instant case, for an order u/s 145, Cr, P. C. is not a final

pronouncement on title in favour of the successful party and it is always defeasible by a decree of a civil court of competent jurisdiction. The

impugned order has only reference to the present possession of the land and the right of the party in possession to have continued domain over the

land without disturbance, particularly disturbance likely to result in breach of peace, until dispossession is ordered by a civil court in recognition of

the superior right or title of the other party.

In the result, the preliminary objection raised by the respondents'' counsel to the maintainability of the criminal revision on other grounds is well

founded. In view of the sustainment of the preliminary objection, the criminal revision petition cannot be heard on merits and will therefore stand

dismissed.

In view of this order, the A party is entitled to get possession of the land from the custody of the receiver. Likewise, the A party is also entitled

to draw the sums of money due to the owner of the land from out of the deposit made by the receiver in court as representing the sale proceeds of

crops harvested from the petition lands.