Munia Servai vs Thangaraya Onturiyar and Others

Govinda Menon, J.—The petitioner seeks to revise the order of the Additional First Class Magistrate of Kumbakonam passed tinder

Section 145 of the Code of Criminal Procedure under the following circumstances.

The property in dispute of an area of 66 acres and odd originally belonged to the Tanjore Palace estate. Subsequent to the decision of the Privy

Council in the litigation which began with O.S. No. 3 of 1919 on the file of the District Court, Tanjore, various claimants got possession of portions

of that estate. The subject-matter of this dispute as well as other properties were mortgaged by an executor of one of the claimants to a Yagappa

Nadar and two others in 1932 for a sum of Rs. 30,000. The entire mortgage right subsequently vested in Yagappa Nadar and he thereby became

the sole mortgagee. The equity of redemption in these and other properties was purchased by C.P.W. 1 on 14th July 1945, who discharged the

mortgage in favour of Yagappa Nadar and claimed to have got possession of these lands. C.P.W. 1 sold away these and other lands to the

present petitioner who was the B party before the lower Court on 2nd July, 1946, and it is alleged that the possession which C.P.W. 1 had also

passed to the petitioner. Disputes regarding the possession between the A party and C.P.W. 1 had already started even before the sale by C.P.W.

1 as a result of which on a report by the police the lower Court passed a preliminary order u/s 145 (1) of the Code of Criminal Procedure on 3rd

August, 1946 and served the same on both the parties. The learned Additional First Class Magistrate, thereafter enquired into the question of

possession very elaborately, considered the large body of oral and documentary evidence produced before him on behalf of both the A and the B

parties, and finally he came to the conclusion that the B party, the petitioner, or Ms predecessors-in-title were never in possession. He adjudged

that possession was with the A party and passed orders accordingly.

The A party consists of 34 tenants who allege that they have been cultivating these properties and have been in actual possession for a long time

even, while the properties remained with the mortgagee. It is further contended that each of these 34 tenants was cultivating separate pieces of

land, some of them a few acres, others less.

Therefore the question for decision is whether the learned Magistrate has applied the right principle of law in coming to the conclusion he did

and whether he was given proper legal findings to justify the conclusion arrived at by him.

As stated already, the learned Magistrate has found that the petitioner or his predecessor-in-title including Yagappa Nadar were never in actual

possession of the lands having pannai cultivation. He also found that all the members of the A party except one had been in possession and

cultivating different parcels of land. The chief contention of Mr. T.R. Venkatarama Sastriar for the petitioner is that the learned Magistrate has

based his finding solely on the evidence of five members of the A party, three village officers and two others who have advanced money to some of

the members of the A party on the produce of the lands in their possession. It is therefore argued that the rest of the members of the A party have

not adduced evidence as to the possession of each of one of them of different parcels of property and further that the learned Additional First

Class Magistrate has not given separate and specifie findings as to what piece or pared of land each one of the members of the A party is actually

in possession. In this connection it has to be pointed out that each one of the members of the A party has in his written statement stated what the

parcel or parcels of land he was then in possession, the particular crops raised by him that year and the plot on which such crops were raised. So

far as the evidence in the case was concerned, the A party adduced, evidence jointly. Each of them had the same source and nature of possession.

It was not as if any of them had a different fact to allege as to how he was in possession. The village officers and the other two witnesses were also

clear and definite as to the persons cultivating the various plots. In addition the learned Magistrate has appended to the judgment schedule B

mentioning the list of disputed lands and stating the survey number, classification, area and the rank of the A party member, who is in possession of

each plot. Such being the case it cannot be successfully urged that the learned Magistrate has not come to any definite decision as to the

possession of the various plots by the various members of the A party. Instead of giving a narrative in the body of the judgment, he has tabulated

the area, definition and classification of the various plots in the possession of the various members of the A party. I do not think that it is absolutely

necessary that the lower Court should have devoted a paragraph or more of the judgment for describing the plots of land and the persons in

possession when the whole matter is clearly stated as an appendix to the judgment.

Mr. Venkatarama Sastriar relies upon the decisions in Chockalingam Pillai v. Nagalingam Pillai (1933) M.W.N. 192 Madhoosoodhan v. Bejoy

Gobind Chowdhury (1873) 21 W.R. (Crl.) 55 and Gulab Kuer and Another Vs. Ganouri Koeri and Others, for the proposition that in cases of

disputes between a landlord and different sets of tenants claiming different plots in their respective possession, a general enquiry is likely to

prejudice the landlord in meeting the ease set up by the tenants and therefore it is essential that the Magistrate should apply his mind and give

definite findings regarding the ease of each individual holding. A general finding that, as contrasted with the possession of the landlord, the tenants

have been in possession, is, according to Mr. Sastriar, insufficient. These decisions do not apply to the present case, because there is no difference

regarding the nature and character of the possession or the source of it between the claims of the respective members of the A party. In

Bindhyachal Prasad v. Madho Singh I.L.R.(1946) Pat. 19 a Bench of the Patna High Court has held that where there is a dispute between two

parties over some land and the members of one party were in possession under one title and separate possession amongst them was a matter of

arrangement, the order of the Magistrate upholding their possession is not bad merely because he has not considered the separate possession of

each particular member of the party. Therefore even if the Magistrate had only given a general finding regarding joint possession by the members of

the A party, his order would not have been irregular. Moreover, after a detailed discussion of the evidence in its various aspects the Magistrate has

clearly and definitely found that the petitioner or his predecessors-in-title did not at any time have actual possession of these lands. He has also

found that the members of the A party were in possession, the details of such possession being given in the schedule appended to the judgment.

Such being the case I am unable to hold that there is any illegality or irregularity in the procedure or conclusion arrived at by the lower Court. Since

an enquiry u/s 145 of the Code of Criminal Procedure is restricted to the possession on the date of the preliminary order and not to the title or the

validity of it which is entirely within the purview of a Civil Court, the conclusion of the lower Court arrived at after fully and amply dealing with all

the matters necessary for such an enquiry, is a correct one. I see no reason to dissent from the view taken by the lower Court and on the findings

given by the Magistrate the authorities relied upon by Mr. Venkatarama Sastriar arc inapplicable to the case.

The petition is therefore dismissed.