Meenakshiammal and Others vs Inspector of Police, Hasthampatti and Another

Suryamurthy, J.—This is a criminal revision case against the order of the learned Executive I class Magistrate and Revenue Divisional Officer, Salem, finding that in the proceedings under S. 145, Crl.P.C., Thiru S.K. Balasubramaniam, who was the counter-petitioner before him was "in actual physical possession of the property" in dispute and prohibiting C.P. Nos. 2 to 5 from interfering with the possession and enjoyment of the said property by S.K. Balasubramaniam.

Though the facts of the case lie within a narrow compass, the learned Executive First Class Magistrate has committed as many blunders as can possibly be committed in proceedings of this nature.

Information under S. 145(1), Crl.P.C., was seat by the Police, Hasthampatty, Salem to the Executive First Class Magistrate, Salem, on 31st December 1974 alleging that as a result of the dispute among the five counter-petitioners referred to in the information, a breach of the peace was likely to occur and praying that the counter-petitioners may be proceeded with under S. 145, Crl.P.C. The Executive First Class Magistrate, Salem, has thereafter purported to initiate proceedings under S. 145, Crl.P.C. However, in the preliminary order passed under S. 145(1), Crl.P.C. the learned Magistrate has not only called upon the counter petitioners to attend his Court in person on 24th February 1975 at 10:30 a.m. and put in written statement and file affidavits in support of their respective claims regarding the possession of the properties in dispute, but has also called upon the counter petitioners to show cause why they should not be proceeded against under S. 145, Crl.P.C., and directed them to execute bonds for Rs. 500/- with one surety (each) for keeping the peace for a period of one year. I may however, at this stage point out that the latter part of the order of the learned Magistrate is not couched in the words in which I have expressed what might have been his intention. The order of the learned Magistrate reads as follows:

I, S. Manimaran, M.A., Executive I Class Magistrate, and Rev. Divisional Officer, Salem consider it necessary that under S. 145, Crl.P.C., you should sow cause why you should not be produced against under S. 145, Crl.P.C..........

Reading the word "sow" as "show" and the word "produced" as "proceeded", I have amended the aforesaid statement of the learned Executive First Class Magistrate to mean that the counter-petitioners were directed to show cause why they should not be proceeded against under S. 145, Crl.P.C. However, in proceedings under S. 145, Crl.P.C., the counter-petitioners cannot be called upon to execute bonds with sureties for keeping the peace. This might have misled the parties into thinking that they were called upon only to keep the peace. However, as the counter-petitioners appeared by counsel, the latter part of the order of the learned Magistrate cannot be deemed to have prejudiced the case of either party.

However, in the final order 9th September 1976, the learned Executive First Class Magistrate-cum Revenue Divisional Officer who succeeded the learned Executive First Class Magistrate-cum Revenue Divisional Officer who passed the preliminary order has purported to rely on an F.I.R. dated 3rd February 1975 presented by the Inspector of Police, Hasthampatti. No such report or F.I.R. dated 3rd February 1975 was sent by the Inspector of Police, Hasthampatti. Evidently, because the aforesaid information dated 31st December 1974 was received in the office of the Revenue Divisional Officer on 3rd February 1975, the learned Executive First Class Magistrate has proceeded on the assumption that the information was dated 3rd February 1975. This fact, however, has not caused any prejudice to either of the parties to the proceedings, and therefore may be ignored.

The order of the learned Magistrate has to be set aside on a very simple ground, viz., that the learned Magistrate has not considered the question as to who was in possession on the date of the preliminary order, but has gone into the question as to who was in possession on the date of the final order. In posing the question for consideration he has stated that "the point for consideration is whether the property is in possession of C.P.1 or C.P.2". He has not considered the question as to who was in possession on the date of the preliminary order. On the other hand, it is seen from the order itself that the learned Magistrate has misdirected himself. He has observed that:

A perusal of Town Settlement Register also clearly shows that in T.S. No. 37 C.P. No. 1 has been included as joint pattadar as per P.T. Order 1703/2/84 d. 31st March, 75. Prior to 31st March, 75 from 18th March, 68. Thirumathi Meenakshi Ammal was alone (sic) having the right over the property since she was a sole Pattadar.

If this finding is correct, then prior to the P.T. order the properties ought to have been in the possession of Thirumathi Meenakshi Ammal. Therefore, she ought to have been in possession on the date of the preliminary order also. However, I am not satisfied that this finding is based on a correct understanding of the facts in dispute. The mere fact that a party''s name is included in the patta or excluded from the patta will not be sufficient determine the question as to who was in physical possession of the property on the date of the preliminary order. This matter has to be gone into in detail and the affidavits sworn to on behalf of either party will have to be perused and considered.

At one stage, the learned Magistrate, has observed as follows.-

The CPs. 2 to 4 are in possession and enjoyment of the entire land in T.S. No. 37 for more than eight years and the patta stands in the name of C.P. No. 2 all along as she is in peaceful possession and enjoyment of T.S. No. 37. To that effect she has adduced evidences (sic) for claim of possession of the entire land in T.S. No. 37. House Tax demand notices for the half year ending 31st March, 74 and for the year 1971-1972 ULT Receipt for Fasli 1381, 1382, 1383, 1384 and 1385, She also produced the extract from Survey and Settlement Register relating to T.S. No. 37. From the records produced by her she has got possessing right over the property till the date i.e. 31st March, 75 on which date C.P. No. 1 was also included as joint pattadar.

The learned Magistrate has confused the concept of possession with the concept of right to possession. What he had to consider was, who was in possession on the date of the preliminary order, and not the question as to who had the right to be in possession. Mere inclusion in the patta as the joint pattadar would not automatically have inducted C.P.1. into possession. If he was in possession, the mere fact that his name was not in the patta would not have ousted him from possession. In such cases the question of actual physical possession has to be considered and not as to who is entitled or who was entitled to be in possession. The learned Magistrate does not appear to have applied his mind to this question. In fact, he has not approached the case from a proper perspective and has not appreciated the evidence in the case and assessed the same to ascertain and give a finding as to who was in possession on the date of the preliminary order.

Subsequently, the learned Magistrate has observed as follows:

When I inspected the said property, the C.P. No. 1 is in possession of 4800 sq. feet to the south of the land owned by Crl. P. No. 2 and C.P. No. 2 is enjoying her portion separately which has got access from the main Road. Though she has produced evidence (sic) to prove that she is the actual owner of the property under dispute she is not in actual physical possession of the said property. As per S. 145 Crl P.C., the main aspect to be decided is whether the property is under the actual physical possession of C.P. No. 1 or C.P. No. 2. As per the partition deed both C.P. No. 1 and C.P. No. 2 are enjoying their portions respectively. In this case the records and my inspection reveal that the C.P. No. 1 Thiru S.K. Balasubramaniam is in actual physical possession i.e. 4800 sq. feet west of the portion enjoyed by C.P. No. 2 as per the partition deed.

The property in dispute is a vacant site. There is no evidence to the effect that the site in dispute is enclosed by any fence. Therefore, mere observation, even though it might be by an Executive First Class Magistrate, would not suffice to show who is in possession of such a vacant site. The learned Magistrate has not incorporated in the notes of inspection any fact or facts or physical features observed by him, which entitled him to come to the conclusion that C.P. No. 1 was in possession. If he wanted to rely on the facts observed by him in the course of his personal inspection of the property in dispute he ought to have made notes of inspection embodying therein the facts observed by him and should have given copies of the notes to both parties so that they may rectify any mistake in observation, lack of rectitude in induction and absence of consistency in deduction. It is not possible to find out on what facts, the learned Magistrate has relied to come to the conclusion that counter-petitioner No. 1, and not counter-petitioner, No. 2, was in possession on the date of his inspection.

Assuming for a moment that the facts and the physical features observed by the learned Magistrate were sufficient to entitle him to come to the conclusion that the first counter petitioner was in possession on the date of his inspection, that would not justify the order passed by him because what he had to find was, who was in possession on the date of the preliminary order. No fact or physical feature observed by him on the date of his inspection would have enabled him to find out as to who was in possession on the date of the preliminary order which has been passed more than one year before his inspection. I do not wish to say that on the basis of the facts found by the learned Magistrate himself, it is not improbable that counter-petitioner No. 2 was in possession till 31st March 1975 and was dispossessed subsequently by counter-petitioner No. 1. That however, is a possibility that does not seem to have occurred to the learned Magistrate. But, on this aspect, I give no finding. The learned Magistrate has failed to consider the question who was in possession on the date of preliminary order and this fact alone is sufficient to set aside the order passed by the learned Magistrate.

Therefore, the order of the learned Executive I Class Magistrate and Revenue Divisional Officer, is set aside and the matter is remanded to him for enquiry afresh and disposal according to law in the light of the observations made above. The Criminal Revision Case is accordingly allowed to the extent indicated above.