Mangalanathan and Ravi @ Rathinavel vs State and Others

V. Kanagaraj, J.—The above Criminal Revision Case is directed against the order passed by the Executive Magistrate-cum-Revenue

Divisional Officer, Madurai as per his proceeding in M.C. No. 818 of 1996 dated 24.2.1997.

Tracing the history of the case, it comes to be known that on account of dispute among parties classified as ''A'', ''B'' and ''C'' regarding

possession of a house located at D. No. 27 Vaidyanathan Street, Shenoy Nagar, Madurai likely to cause a breach of peace that existed in the

locality and the same having been brought to the notice of the said Executive Magistrate-cum-Revenue Divisional Officer, Madurai by the

Inspector of Police. J.2, Mathichiyam Police Station, Madurai city who on complaint registered a case in Crime No. 970/96 of his Police Station

on 18.12.1996 and the same having been intimated to the Executive Magistrate-cum-Revenue Divisional Officer, Madurai, the said Magistrate

instituted the proceeding in M.C. No. 818 of 1996 and passed a preliminary order dated 19.12.1996 u/s 145(1) Code of Criminal Procedure

thereby calling the parties to appear before him either in person or by pleader and to put in their objections in order to decide as to who is or has

been in possession of the said house, within sixty days prior to the commencement of the said proceeding.

It is further seen that at the request of the complainant/Inspector of Police, the Executive Magistrate had also appointed a Receiver u/s 146 of

the Code of Criminal Procedure to inspect the said house not only to assess as to who is in occupation but also to maintain the said house, pending

disposal for the proceeding; that on inspection by the Commissioner, it came to be known that two advocates namely Selvam and Nagarajan were

in possession of a portion of the said building and on their application, they have also been impleaded in the above proceeding as ''D'' party.

So far as the contentions of the ''A'' party Respondents before the Executive Magistrate are concerned, that the ''A'' party purchased the

property in question from one Palanichamy Thevar by means of a sale deed dated 27.4.1992 and having taken possession of the same on the

same day, they continued to be in possession of the said property effecting the payment of Corporation Tax and thereafter from 23.10.1996

onwards, leasing out the same to ''D'' party advocate''s as per a registered lease deed dated 23.10.1996 and thus they are in constructive

possession of the said property.

So far as the contentions of the ''B'' party are concerned, the property in question, which was originally belonging to one Ratnaveluchami

Thevar, fell to the share of his son Palanichamy in the partition and the said Palanichamy, through his Power of Attorney Agent namely Mamalla

Mahendran had sold the said property in favour of one Padmavathi Nachiyar on 24.10.1991 for valid consideration and herself effecting the

payment of the Corporation Taxes mortgaged the said property in favour of one Pondy and on redemption of the mortgage on 30.6.1994, the said

Padmavathi Nachiyar took possession of the property, from which the ''B'' party Radhakrishnan purchased the same on 1.7.1994; that the said

Radhakrishnan leased out the said property in favour of ''C'' party and the ''C'' party in turn sub-let the portion of the said building to the

Prohibition Enforcement Wing Police from 1.3.1995 onwards with the consent of the ''B'' party: that on abolition of the said Police Wing by the

Government on 30.9.1996. they vacated the portion occupied by them and thereafter the said portion had been let out to the Hindu Religious and

Charitable Endowments Department, who kept their articles inside and locked the said portions that breaking open the said lock on 28.10.1996,

the ''A'' party and ''D'' party Respondents forcibly occupied the same and that a complaint had been lodged with the police on the same day.

Hence, the ''B'' party and the ''C'' party are only in lawful possession of the said house. This stand taken by the ''B'' party has been adopted by the

''C'' party also.

It further comes to be seen that there had been complaints and counter complaints by parties against each other and they have been taken on file

by the complainant Police as P.I.R. Nos. 142/96 and 146/96 dated 29.10.1996; that the Prohibition Wing Police while vacating the said building

have entrusted the same with Radhakrishnan of ''B'' party on 30.9.1996 that the ''A'' party has filed a civil suit in O.S. No. 57 of 1995 in the Court

of the Principal District Munsif, Madurai and also filing an application in I.A. No. 59 of 1995, obtained an interim order on 11.1.1995, which is still

in force, that likewise, the ''C'' party has also filed another suit in the same Court in O.S. No. 2181 of 1996, and they too filling I.A. No. 1242 of

1996 have obtained an interim order; that in view of the above suits instituted by them which is pending in the civil Court, it is the contention of the

''A'' party that the proceeding initiated by the Executive Magistrate u/s 145 Code of Criminal Procedure is not proper.

During arguments, the learned Counsel appearing for the revision Petitioners herein would contend that it was Palanichamy Thevar to whom the

subject matter originally belonged; that the Petitioners herein are the ''A'' party to the proceedings; that they purchased the property from

Palanichamy Thevar by means of a registered sale deed dated 27.4.1992, that the contention of the ''B'' party is that Padmavathi Nachier

purchased the said property from one Mamalla Mahendran who claims to be the Power of Attorney agent of the said Palanichamy Thevar under a

registered sale deed dated 24.10.1991.

The learned Counsel would further argue that it is ''B'' party/Respondent No. 2 viz. Radhakrishnan is said to have purchased the property in

question from the said Padmavathi Nachiyar as per the sale deed dated 1.7.1994; that the said instrument had been executed in Kerala shrouded

by suspicious circumstances; that it was a clandestine purchase; that the ''A'' party purchased the property directly from the owner; that two

Advocates who got impleaded as ''D'' party/Respondents No. 6 and 7 viz., N. Selvam and K. Nagarajan forcibly occupied the premises and put

up their board as though they are the tenants of the building; that ''B'' party/Respondent No. 2 Radhakrishnan also with the help of local police and

unruly elements started troubling the ''A'' party Petitioners in order to vacate them by unlawful means and ways; that what prompted in this regard

is that the police party themselves were the occupants of the building using it as P.E.W. office and the said occupation was nothing but illegal: that

the said Police vacated the premises and the ''D'' party/Respondents 6 and 7 Advocates occupied the same in the same manner and the other

portion is occupied by a local M.P. for his office purposes.

The learned Counsel for the revision Petitioners would continue to argue stating that the ''A'' party filed a suit in O.S. No. 57 of 1995 on the file

of the Court of District Munsif, Madurai for Permanent Injunction along with an Interlocutory Application in I.A. No. 59 of 1995 praying for the

grant of ad-interim injunction and the same had also been granted on 11.1.1995 pending disposal of the suit: that the above Section 145 Code of

Criminal Procedure proceedings came to be instituted only on 24.2.1997; that the ''C'' party/Respondent No. 5 Arulmozhi says that they got the

lease deed and claiming to be lessee, he too filed a suit in O.S. No. 2181 of 1996 and had obtained a similar order of ad-interim injunction

restraining the ''A'' party from interference: that the Revenue Divisional Officer also appointed a Commissioner to inspect the suit locality; that u/s

145(4) Code of Criminal Procedure no evidence had been recorded by the Executive Magistrate but only on the basis of the affidavits and

preliminary objections, the final order had been passed; that without examining the witnesses with due opportunity for the other side also to cross

examine, no proceeding initiated u/s 145 Code of Criminal Procedure could be decided and if an order without examination of the witnesses is

passed, it vitiates the entire proceedings. In consummation of the said points, the learned Counsel would cite many judgments reported in various

journals and the first of the series of judgments is one delivered in K. Palaniappan and Six Ors. v. 1. The Executive First Class Magistrate &

R.d.O., Sankari 2. K. Kandasamy Goundar reported in 1989 L.W. (Cri.) 321 wherein it is held:

Sub-section (4) of Section 145 Code of Criminal Procedure enables both parties to adduce oral and documentary evidence and the Magistrate is

bound not only to receive all such evidence as may be produced but also is empowered to take such further evidence, if any. as he thinks

necessary. The Magistrate, under the new Code (1974) cannot dispose of a proceeding on the basis of affidavits and therefore, the evidence of

witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to

enable parties to adduce evidence reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a

duty to summon such witnesses as may be required by either party. This procedure prescribed under Sub-section (4) must be followed for it is

mandatory and the oral evidence adduced will have to be recorded and documents properly proved according to the rules of evidence. After the

production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him,

which necessarily implied discussion of the evidence placed before him.

The next judgment cited is one reported in S. Ramaiah Thevar v. K. Manikam 1994 1 L.W. (Cri.) 206 wherein the learned Judge,

Arunachalam, J., as he then was, having a comparative study of Section 145(4) of the present Code with that of the corresponding Section in the

old Code has given a clear picture of the new Code distinguished from that of the old one in the following manner-

The impugned order appears to be a final order passed u/s 145(4) of the Code. Though under the 1898 Code of Criminal Procedure, evidence

through affidavits was permissible, in the 1974 Code, evidence through affidavits was erased from the Section and instead, parties were allowed to

produce oral and documentary evidence. The object apparently was evidence through affidavits was not open to challenge by cross-examination.

The Executive Magistrate has not acquitted himself with the procedure prescribed u/s 145(1) Code of Criminal Procedure.

The next judgment cited is one reported in Kailasa Thevar and Anr. v. Ramiah and 42 Ors. 1994 1 L.W. (Cri.) 201 wherein the same learned

Judge, Arunachalam, J., held that

...An abrupt conclusion has been arrived at or the Executive Magistrate has decided that the actual possession of the lands in question was with the

''B'' party and therefore a declaration had to be made. A final order must state the facts on which proceedings were intuited, the evidence placed

by either party for scrutiny, the nature of contentions advanced and assessment of those contentions based on documentary and/or oral evidence,

must have formed part of the discussion portion of the order, before the verdict is delivered. No such procedure has been followed by the

Executive Magistrate....

The next judgment cited for the same proposition is one reported in N.A. Ansary and 11 Ors. v. Jackiriya and 16 Ors. 1990 L.W. (Crl.) 93

wherein it is held that:

Section 145(4) has been incorporated in the present Code, as per the recommendation of the Law Commission, as the procedure obtaining

previously as the per amended Code, 1955, did not bring forth the desired result, in the sense of not making it possible for the Executive

Magistrate to decide the factual or actual possession of the subject matter of the dispute by reference to the respective statements of the parties,

receive their claims and the affidavits filed thereto.

So far as the case on hand is concerned, it transpires from the records that no oral evidence had been let in and the final order has been passed

solely on the basis of the written statement filed by ''A'' party and the interim injunction order of the Civil Court:

Held: It is to be mentioned here that a perusal of the records available before Court do not point out that any opportunity in fact had been given to

the parties to adduce evidence as contemplated u/s 145(4) Code of Criminal Procedure by the Magistrate. What he has done is that on receipt of

the Police report, deriving the subjective satisfaction of the existence of breach of peace in respect of the subject matter of dispute between the

parties, he passed a preliminary order u/s 145(1) Code of Criminal Procedure directing the parties to appear before him on a particular day and

put in written statements of their respective claims to the subject matter of dispute, only published the same according to Section 145(3), but,

without adhering to the provision of Section 145(4), by taking the evidence of parties, directly proceeded to pass a final order u/s 145(6) Code of

Criminal Procedure on the basis of the materials available on record.

...Section 145(4) comes into operation immediately after the publication of the preliminary order as required u/s 145(1) and a mandate is cast upon

the Magistrate ""to receive all such evidence as may be produced by them"", which phraseology connotes a meaning that sufficient and adequate

opportunities have to be provided to either of the parties to prove their respective claims in respect of the subject matter of dispute, as rightly

interpreted by the Calcutta High Court in Abhimanyu Kumar Roy Vs. Nanak Ram Agarwalla Ors., .

12-A. The last judgment cited by the learned Counsel for the revision petitions is one reported in Lucas and 9 Ors. v. Father Bilavendran, R.C.

Church, Koneripatti, Attur Taluk and 18 Ors. 1996 2 L.W. (Crl.) 370 wherein following the judgment reported in K. Palanippan and 6 Ors. v.

The Executive I Class Magistrate and R.D.O. Sankarai and Anr. 1989 L.W. (Crl) 321 (stated supra) it would be held that

even assuming that such written statement has been filed, the decision referred to above rendered by this Court would clearly show that the

question of possession cannot be decided on the basis of affidavits or written statements alone, but further opportunity of examining and cross

examining the witnesses must be given to the parties. Admittedly, this is not done in this case.

The learned Counsel would ultimately end up his argument saying that having not complied with the statutory requirements prescribed u/s 145(4) of

the Code of Criminal Procedure since the order has been passed by the authority below, the entire proceeding gets vitiated and would pray for

allowing the above Criminal Revision Case setting aside the order passed by the Executive Magistrate, Madurai.

In reply, the learned Counsel appearing for the Respondents/B party and Respondents/''C'' party would fiercely contend that no Court can

compel any party to adduce oral evidence or any evidence more than what the party has opted for; that there is no ground offered on the part of

the Petitioners to the effect that in spite of they having opted for adducing oral evidence, the Magistrate refused to record the same thus denying an

opportunity for them to put forth their evidence; that if none of the parties want to examine any witness, the learned Executive Magistrate is left with

no option but to decide the matter on materials available on record; that moreover in this case, the Magistrate had also appointed a commission to

inspect the spot and to assess the ground realities regarding the possession and Occupation of the premises in question; that just for the simple

reason that the document is executed at Kerala, the sale deed cannot be held invalid or unenforceable since it is quite legal and enforceable

instrument. The learned Counsel would further contend that two orders have been passed by the Civil Court, one in favour of the ''A'' party on

11.1.1995 and the other in favour of the ''B'' party on 16.12.1996 and both these orders have been passed as ad-interim ones on Interlocutory

Applications filed in the respective suits by the parties and while such of the orders and the suits are pending before the Civil Court regarding the

same subject matter, the impugned order had been passed on 24.2.1997. The learned Counsel would point out that the injunction had been

extended in favour of the ''A'' party upto 3.2.1997 only but the order passed in favour of the ''C'' party in I.A. 1246 of 1996 dated 16.12.1996 is

still in force but none of the parties produced any injunction order before the lower authority. The learned Counsel would ultimately pray for non-

interference of this Court into the findings of the Executive Magistrate since the Executive Magistrate had passed a right order at the right time in a

right manner, which is not at all affected by illegality.

The above Criminal Revision Case has come up before this Court against the order passed by the learned Sub Divisional Executive

Magistrate, as per his proceeding in M.C. No. 818 of 1996 dated 24.2.1997 as a result of the proceeding instituted by the same Executive Sub

Divisional Magistrate u/s 145(1) Code of Criminal Procedure based on a report submitted by the Inspector of Police, J.2, Mathichiyam Police

Station, Madurai, in a criminal case registered in Crime No. 970/96 dated 18.12.1996, pertaining to a property situated in Door No. 27,

Vaidyanathan Street, Shenoy Nagar, Madurai, a house property, wherein, on account of the ''A'' party and ''D'' party Respondents on one hand

and ''B'' party and ''C'' party Respondents on the other, claiming ownership and possession of the said premises and the learned Magistrate on

being satisfied that the said dispute likely to cause a breach of the peace existed, had passed a preliminary order dated 19.12.1996 requiring the

parties to appear before him on 23.12.1996 thus initiating the said proceeding u/s 145 Code of Criminal Procedure. Thereafter, on account of the

tense situation that still prevailed during the pendency of the said proceeding, the learned Magistrate had appointed the Headquarter Deputy

Tahsildar as the Receiver to take possession of the building under Police protection and to report him as per his order passed u/s 146 Code of

Criminal Procedure dated 19.12.1996. Then, based on such representations made in writing by the parties in the form of affidavit and certain other

documents submitted and considering these materials in his own way, the learned Magistrate has passed his ultimate order on 24.2.1997 u/s

145(6) Code of Criminal Procedure concluding thereby that it is the ''B'' and ''C'' parties in occupation respectively being the owners and in

possession of the disputed premises and the ''A'' party Respondents, having become aggrieved of the order passed in favour of the ''B'' and ''C''

party Respondents and challenging the same, they have come forward to prefer the above Criminal Revision Case before this Court, on certain

grounds as elicited supra.

One Palanisamy Thevar seems to be at the bottom of the mischief having sold the one and the same disputed house in favour of two parties,

first, giving a sale deed in favour of one Padmavathi Nachiyar through his authorised Power of Attorney Agent, as per the sale deed dated

24.10.1991 and again himself directly executing a sale deed in favour of both the ''A'' party Respondents, as per the registered sale deed dated

24.7.1992. It is the case of the ''B'' and ''C'' party Respondents who sail together in so far as the above proceeding is concerned that the original

purchaser. Padmavathi Nachiyar having taken possession of the suit premises on the date of purchase itself and having paid the taxes, mortgaged

the disputed property with one Pondy and redeemed the same on 30.6.1994 and thus taking possession of the premises from the said mortgage,

she sold the disputed property in favour of Radhakrishnan of ''B'' party, as per her registered sale deed dated 1.7.1994 besides inducting him into

physical possession of the same.

It is their further case that the ''B'' party Radhakrishnan leased the premises to the ''C'' party and the ''C'' party in turn, sublet a portion of the

said premises in favour of the Prohibition Enforcement Wing Police, Madurai, on 1.3.1995 with prior consent of the ''B'' party and the said police

wing having come to be abolished with effects from 30.9.1996, they vacated it and the said portion was again sublet in favour of Hindu Religious

and Charitable Endowments Department, who kept their articles and locked it keeping the said portion under their custody for making use of the

same for their office purposes, but the ''A'' party Respondents deliberately broke open the lock on 28.10.1996, resulting in the lodging of a police

complaint against them and with the interference of the Police, possession was restored, thus claiming that it is the ''B'' and ''C'' party Respondents,

who are respectively in constructive and actual possession of the disputed premises.

On the contrary, the contentions of the ''A'' party Respondents are that they have purchased the property from the said Palanisamy Thevar on

27.4.1992 as aforementioned and effecting payment of taxes themselves, leased it out to the ''D'' party Respondents on 23.10.1996 both of whom

are Advocates and hence their case is that they were in physical possession of the premises on the date of order made u/s 145(1) of the Code of

Criminal Procedure. The learned Executive Magistrate merely based on the pleadings of the parties and having assessed the facts and

circumstances of the case based on the pleadings alone and without consideration of any of the documents said to have been filed by either side

most of which are photostat copies which could not be considered for any evidentiary value and based only on his assumptions, has ultimately

concluded that it is the ''B'' and ''C'' party Respondents who are in possession of the disputed premises. The authority below has not even

considered any of the documents filed before him by parties. Needless to point out that absolutely no oral evidence has been either let in by the

parties or recorded by the Executive Magistrate during enquiry. It is under these circumstances that the ''A'' party has not only come forward to

allege that in view of the pending civil suits filed by both and the interim orders passed in the Interlocutory Applications in both suits, the above

proceeding is unnecessary and unwarranted but also would pray to set aside the inconsistent order passed by the Sub Divisional Executive

Magistrate.

It is under the above circumstances, the above Criminal Revision Case has to be decided by this Court. On a bare assessment of the case, it

comes to be known that the following important aspects are to be determined in order to arrive at a conclusion in the above Criminal Revision

Case. They are:

i) Whether for instituting the proceeding u/s 145 Code of Criminal Procedure by the Executive Magistrate, the pending civil suits for ascertaining

the possession in the civil Court would be a bar? What is the position if there is an interim order or direction regarding possession in the suit

already pending?

ii) Whether the Executive Magistrate is right in deciding the case without recording the oral evidence of parties concerned for proper consideration

and conclusions to be arrived at?

iii) Whether it is proper on the part of the Executive Magistrate in not considering the documents filed by parties and what are the vital aspects of

law governing the documentary evidence?

iv) What relief, in the circumstances of the case, the parties are entitled to?

Point No. 1:

Regarding the above point, at the outset it is proper to discuss about the salient features of the subject envisaged u/s 145 Code of Criminal

Procedure. A proceeding u/s 145 Code of Criminal Procedure is a peculiar but a subject of vital importance that has been given serious thought of

by the framers of the Code of Criminal Procedure so as to decide it fit to introduce the Section in the Code. For sure, the framers would have had

the wisdom that deciding the question of possession is purely the jurisdiction of the Civil Court and in spite of such knowledge to introduce the

Section in the Code thereby empowering the Executive Magistrate to decide the question of possession of those items of properties alone which

are mentioned in the Code under the definition of ''Land or Water'', there must be strong reasons and unless those objects are found out and

clearly understood, we may not be able to either apply the ingredients of the Section to the facts of the case or to appreciate the evidence properly

so as to arrive at a valid decision.

Barely dissecting the Section, it would come to be known that the conclusion to be arrived at by the Magistrate is civil in nature i.e. to declare

as to which of the contesting parties it to be treated as being in such possession of the subject matter on date of passing of the preliminary order or

to restore possession of the party in the event one of the parties had been wrongfully dispossessed within sixty days immediately proceeding the

date of passing of the preliminary order. In the common parlance, the above decision to be arrived at. would appear to be purely civil in nature,

but, at the same time, it is the Executive Magistrate, who is empowered to not only hold an enquiry, according to the procedures laid down by the

Section but also to declare or restore possession with the right party as aforementioned.

It is open to the knowledge of everyone that in the normal course the above powers are enjoyed by the Courts of civil jurisdiction wherein the

Civil Courts after enquiry or trial would ultimately decide the question of possession. But, what has made the framers of Law to entrust this

responsibility with an Executive Magistrate enjoying criminal jurisdiction is the interesting aspect of the proceeding u/s 145 Code of Criminal

Procedure. Unlike the civil courts the jurisdiction of the Executive Magistrate is limited to not only certain specified items such as land, water,

building, fisheries, market place, crop or produce of the land, rents or profits etc., but also as it is in the case of the Civil Court such powers to

decide the question of possession of parties cannot be ordinarily exercised unless a dispute likely to cause breach of peace exists within his

jurisdiction in such subject matters mentioned above and under such circumstances, the Executive Magistrate is empowered to make an order as

required u/s 145(1) of the Code of Criminal Procedure requiring the parties to appear before him and to put in their written statement and to

adduce evidence in the manner provided for u/s 145(4) Code of Criminal Procedure. The satisfaction of the existence of a dispute likely to cause

breach of peace concerning the said subjects could be arrived at by the Executive Magistrate either on a report of a Police Officer or upon other

information.

It is relevant to point out that the order passed by the Executive Magistrate under the Section absolutely does not have any bearing over the

question of title. Further, even regarding the possession, the order made by the Executive Magistrate is not valid, provided the dispute is not likely

to cause breach of peace or hindrance to public tranquility. Such of the orders passed by the Executive Magistrate shall remain in force until such

time that the issue of possession is ultimately resolved by a competent Civil Court in a suit instituted for the purpose of deciding possession by

either of the parties. Yet another point that is to be borne in mind is that it is the actual possession that is contemplated by the Act.

While so, sticking to the subject, if Point No. 1, is to be dealt with, it is a question often answered either ways by different Courts at different

points of time. But still, regarding the dual jurisdiction lying with the Civil Courts according to the civil laws and that of the Executive Magistrate

conferred by Section 145 Code of Criminal Procedure unless clarified, the possibility of the whole matter being confused cannot be ruled out. No

definite line could be drawn regarding the exercise of power by the Civil Court and that of the Executive Magistrate u/s 145 Code of Criminal

Procedure since everything depends on various factors involved in each individual case. It cannot be either tentatively or ultimately ruled that it is

the Civil Court which is destined to decide the question of possession. Once the Civil Court either entertains a suit or even passes an interim order

restraining one of the parties from interfering with the possession of the other party or even when a Civil Court has ultimately decided the question

of possession and the right of parties regarding possession it cannot be said that the jurisdiction of the Executive Magistrate would cease within the

meaning of the powers conferred on him u/s 145 Code of Criminal Procedure? Having regard to the propositions arrived at by the upper forums of

law particularly by the Apex Court, institution of or pendency of a civil suit either regarding possession or declaration of title and possession or

even for a permanent injunction it would not in any manner obstruct or hinder the Executive Magistrate from gaining jurisdiction u/s 145 Code of

Criminal Procedure since the question of possession in a pending suit it yet to be resolved.

Going a step further, if the determination of possession of parties by the Executive Magistrate as envisaged u/s 145 Code of Criminal

Procedure during the pendency of a suit in which an injunction order passed in an Interlocutory Application is in force, it needs discussion. An

order passed in a pending suit keep the Respondents therein at bay being restrained by the Court from interfering with the subject matter. The said

order has all the merits to be enforced and such an order passed by the Civil Court either ex parte on a subjective satisfaction arrived at, at the

time the suit it instituted emergently or otherwise or as final order in consideration of the facts and circumstances encircling the case and in the light

of the evidence placed on record, it is the general proposition which is well settled that the same should be enforced by the concerned authorities.

In the above circumstances, could it be concluded that since an order passed by the Civil Court regarding possession by restraining the

Respondents therein the jurisdiction of the Executive Magistrate u/s 145 of the Code of Criminal Procedure is ousted? The answer is that in spite

of such an order passed by the Civil Court being in force, the jurisdiction of the Executive Magistrate u/s 145 Code of Criminal Procedure is not

ousted in the sense that such an order passed by the Civil Court is only binding on parties to the suit or application and the jurisdiction of the

Executive Magistrate u/s 145 Code of Criminal Procedure spreads to the likelihood of causing breach of peace and tranquility to the subjects in

the locality. There is no limitation or guarantee that such a likelihood of breach could exist only where there is no injunction order passed restraining

the Respondents to the petition.

Moreover, there is no guarantee in cases where an ex parte ad-interim injunction order passed by the Civil Court to persist for ever since the

same could at any time be vacated by the Civil Court while passing the final order or even at the time of disposal of the suit itself. Further, in cases

where an appeal or revision is filed which avenue is open for parties to resort to and since the appellate Court could stay the lower Court order, no

time limit could be fixed also for deciding the same ultimately and till such time the Executive Magistrate cannot remain silent when he has definite

information of the breach of peace in the locality. Needless to point out that in the existing conditions that persist in Civil Courts wherein suits of

such nature cannot be decided in a time bound manner, even if a decision is rendered by the trial Court early, for exhausting the other remedies

open for parties with the appellate Courts, it is difficult to say when the ultimate decision is going to be struck by the Civil Court. Hence, till such

time, it cannot be said that there would not be any likelihood of breach of peace and tranquility to subjects.

Moreover, a decision in the suit or application binds only the parties concerned, whereas the scope of Section 145 Code of Criminal

Procedure is not restricted to the said extent of binding only the parties to the suit, but it has got wider ambit and scope to cover up all those who

are responsible for causing the likelihood of breach of peace. Moreover, the Civil Court is empowered to deal with and determine the various

types of possession of parties on existing facts but the Executive Magistrate acting u/s 145 Code of Criminal Procedure proceeding has to decide

the same only where the anticipation of breach of peace or tranquility exists and not otherwise. Moreover, the Magistrate is to decide only physical

possession and none else. It is also not the possession alone that is to be taken into consideration so as to say that it could be well decided by the

Civil Court, so far as the subject matter is concerned, but it is the likelihood of breach of peace that the dispute tends to cause or become

susceptible to give way. Neither breach of peace nor breach of tranquillity that are likely to occur are the parameters for the Civil Courts to

consider nor does it have any facility to do and hence the Executive Magistrate, who is m-charge of law and order in the locality and who has the

facility to directly assess the extend of the breach likely to occur, is armed with such powers to decide the question of possession regarding the

subject matter. Though an order passed by the Civil Court should be enforced by the law enforcing agencies, it could be done only regarding

parties to the suit or application and the question of breach of peace that is likely to occur in the locality cannot be curbed by means of civil order

or decree passed by a Court of civil jurisdiction declaring the party in possession. It is only the Executive Magistrate, who is empowered u/s 145

Code of Criminal Procedure could do by initiating the proceeding and binding parties who disturb peace or initiating such other security

proceedings as contemplated in the Code.

Moreover, so long as the question of possession is ultimately resolved by the Court of Civil Jurisdiction, it does not mean that the breach of

peace that is sure to occur on account of dispute regarding land, water, market place etc. should be allowed to show its ugly head. As a preventive

measure, the Executive Magistrate is armed with such powers to act in anticipation of breach of peace and tranquillity to the subjects in the locality

and initiating such measures as contemplated under the Section, he would resolve the dispute ultimately deciding the possession of parties and such

an order passed by the Executive Magistrate will be in force until the question of possession is resolved ultimately by the Civil Court and such

findings of the Executive Magistrate will also be taken into consideration by the Civil Court while deciding the issue of possession of parties though

not it is bound by it. Therefore, since, it is a matter concerned with security of the subjects in general, the Executive Magistrate, being the Law

Enforcing Authority, is armed with such powers to decide the question of possession in anticipation of breach of peace and tranquillity and this

power could be exercised by the Executive Magistrate, whenever such situation arises or exists in the locality regardless of the fact whether any

other party has already been declared by the Court of Civil jurisdiction to be entitled for possession and in such event, the Executive Authority

acting as the Law Enforcing Agency initiating such measures as contemplated u/s 145 Code of Criminal Procedure and in consideration of the Civil

Court''s directions or orders would ultimately induct the person entitled to be in possession electing the trouble mongers or who is in forcible

possession or occupation of the subject matter Therefore, the jurisdiction of the Magistrate will not cease, if a suit is pending or even an Interim

Order is passed by the Court. But, the Magistrate is always expected to act in consonance with the Order passed by the Civil Court and not in

derogation of the same and such an order confirming the right person''s possession passed by the Executive Magistrate u/s 145 Code of Criminal

Procedure would be in force till a finality of decision is made on the issue on a suit by the Civil Court of law.

So far as the facts of the case in hand are concerned and in the circumstances, there is nothing wrong on the part of the Executive Magistrate

to have initiated the proceeding u/s 145 Code of Criminal Procedure. since it is the admitted case of both parties that both have filed suits in the

Civil Court regarding the subject matter for title and possession and both of them have also obtained injunction orders restraining the other in each

suit and while the suits are still pending and in the above circumstances since the Executive Magistrate received reliable information that the

likelihood of breach of peace existed regarding possession of the subject matter, till a finality of decision is arrived at by the Civil Court in the suit,

the proceedings initiated and conducted by the Sub-Divisional Executive Magistrate u/s 145 Code of Criminal Procedure has been rightly done

and there is nothing wrong in the initiation of the proceeding, as it is argued on the part of the ''A'' party Respondents.

Point No. 2:

So far as this point is concerned, a number of decisions have been rendered by this Court at various points of time, which have been cited by

the ''A'' party Respondents which are all telling to the effect that it is not sufficient to decide the question as to with whom is the actual possession

of the subject matter on the basis of affidavits and written statements alone, but, opportunity of examining and cross examining the witnesses must

be given to the parties, as warranted under Sub-section (4) of Section 145 Code of Criminal Procedure. But, at the same tune, what would the

Magistrate do if the parties do not come forward to make use of the opportunity that is afforded u/s 145(4) Code of Criminal Procedure in spite of

the Magistrate being ready to record the evidence? Then he will be left with no option, but to decide the case on available materials, since on the

part of the learned Magistrate, the parties cannot be compelled to adduce evidence.

In the present case, there is absolutely no iota of evidence in proof of the fact that either of the parties or both opted for adducing oral

evidence. There is also no gain saying the fact that the Magistrate should have compelled the parties to adduce oral evidence. Moreover, both the

parties are being well represented by the learned advocates, it could be presumed that they would have considered it not necessary to adduce oral

evidence and hence the Magistrate cannot be blamed for denial of opportunity to adduce oral evidence as though it was opted by parties and

rejected by the Magistrate. In these circumstances, since the Magistrate was left with no option but to decide the matter with the available

materials, no irregularity seems to have been committed on his part much less, for non-compliance of the relevant provision of Section 145(4)

Code of Criminal Procedure. This point is decided in the above manner

Point No. 3:

So far as this point that is regarding the appreciation of evidence by the Magistrate is concerned, the learned Magistrate neither appreciated the

evidence in the context of the facts and circumstances of the case nor in consideration of the material made available. For instance, main

documents have been filed by the parties including sale deeds. But none of these documents have been considered by the Magistrate and

appreciated on evidence, so as to arrive at his conclusion ultimately.

On a perusal of the records, it comes to be known that the majority number of documents are photostat copies which cannot be allowed for

being marked, nor taken up for consideration. Only some documents have been filed in original and they too have never been considered by the

Magistrate prior to arriving at his conclusions. In short, the conclusions arrived at by the Executive Magistrate in the case in hand have been purely

based on his suppositions, surmises, hypothesis, and conjectures. Merely on a reading of the pleadings of parties through the affidavits and written

statements and not based on such materials and on evidence whether oral or documentary the learned Magistrate has formed his opinion and

concluded and hence the only conclusion that could be arrived at is the Executive Magistrate, Madurai, in the present case, has decided the case

not on evidence as desired by law but on extraneous considerations and the same is bad in law. Hence, for the above point, it is hereby answered

that the learned Executive Magistrate, Madurai, has decided the subject merely on the face value of the case put up by parties and not based on

evidence as warranted by law.

At this juncture, it is relevant to point out the following ingredients, which are to be taken care of by the Executive Magistrate in initiating the

proceeding u/s 145 Code of Criminal Procedure:

i) that it is the Executive Magistrate, having jurisdiction over the locality wherein the subject matter situates, who is competent to initiate proceeding

u/s 145 Code of Criminal Procedure;

ii) that such initiation of the proceeding should be done by the Magistrate on his being satisfied that a dispute likely to cause a breach of peace

exists concerning land, water, market place etc. within his local jurisdiction;

iii) that the satisfaction regarding the existence of the likelihood of breach of peace could be arrived at by the Executive Magistrate either on a

police report or otherwise;

iv) the Magistrate shall make his order in writing of his being so satisfied regarding the existence of the said dispute i.e., the preliminary order u/s

145(1) Code of Criminal Procedure.

v) In the Preliminary Order, the Magistrate shall require parties concerned with the dispute to attend to his Court in person or by pleader on a

specified date and time and to put in written statements of their respective claims;

vi) The subject matter of the dispute should be in respect of the actual possession of land or water or building or markets or fisheries or the

boundaries thereof or crops or other produce of land and the rents or profits of any such property.

vii) That a copy of the order shall be served in the manner provided by the Code of Criminal Procedure for the service of summons upon the

persons concerned with the dispute, at least one copy shall be published by affixture in a conspicuous place at or near the subject of dispute;

viii) That on perusal of the statements put in, hearing the parties, receiving all such evidence and further evidence, the Magistrate has to decide

whether any and which of the parties was in possession of the subject of dispute on the date of the preliminary order; and

ix) That if any party has been forcibly or wrongfully dispossessed within two months next before the date of receipt of information and before the

date of preliminary order, the Magistrate may treat that party so dispossessed as though he was in possession on the date of his order made under

Sub-section (1) of the Section 145 Code of Criminal Procedure and restore possession of the party wrongly dispossessed.

Though the proceeding initiated by the Executive Magistrate-cum-Revenue Divisional Officer, Madurai, as per his proceeding in M.C. No.

818 of 1996 dated 24.2.1997 u/s 145 Code of Criminal Procedure relating to the subject matter is quite legal and proper, since the Magistrate has

concluded without proper consideration of the facts and circumstances of the case in the light of evidence, without adequate opportunity for parties

to adduce oral evidence and thereby marking the documents validly and of course without proper appreciation of such evidence adduced by

parties concerned, the order passed by the Executive Magistrate, Madurai, becomes inconsistent and improper and the same is hereby set aside.

However, in the interest of justice, the case is remanded to the same authority, viz. the Executive Magistrate-cum-Revenue Divisional Officer,

Madurai, for reconsideration in the light of those vital aspects of rules and procedures that are to be strictly observed as laid down by law with due

opportunity to parties and recording such oral and documentary evidence adduced by parties to decide the matter on merits in full consideration of

the facts and circumstances of the case in the light of such evidence adduced by parties and appreciating the evidence in the right angle.

In result:

i) The above Crl.R.C. subject to the remarks, is allowed;

ii) the Order passed by the Executive Magistrate-Cum-Revenue Divisional Officer. Madurai, as per his proceeding in M.C. No. 818 of 1996

dated 24.2.1997 is hereby set aside;

iii) the above case is remanded to the Executive Magistrate, Madurai for reconsideration;

iv) the Executive Magistrate-cum-Revenue Divisional Officer, Madurai is hereby directed to conduct a fresh enquiry providing with further

opportunity for both parties to adduce oral and documentary evidence and recording the same in the manner provided for under the Section and

the Evidence Act.

v) The Executive Magistrate is also further required to record the oral evidence of parties and the complainant/police official in the manner

provided by law as aforementioned and properly discussing and appreciating the evidence so collected and placed on record to pass his order

ultimately giving reasons for arriving at such a decision.

(vi) Since the subject is concerned with breach of peace and tranquillity in the locality, the Executive Magistrate concerned is required to complete

the entire procedures and pass orders within six months from the date of receipt of the copy of this order.

Consequently, Crl. M.P. No. 759 of 1997 is dismissed.