Thylayee Ammal vs Srirangaroya Goundan and Another

Ramesam, J.—This revision petition is against an order of the Sub Divisional Magistrate of Erode dated 8-12-1921. An objection has been

taken by Mr. Govindaraghava Iyer the learned vakil for the respondents that I have no power to interfere. He relied on Komalkutty v.

Udayavarma Raja Valia Raja of Chirakkal 23 M.L.J. 499 (Ayling and Napier, JJ.) and Empror v. Sakkamat Ali ILR (1919) All. 302 (Knox, J.)

A sentence in 36 Mad. 275 at p. 286 ""Once he is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation

to procedure, and not jurisdiction"", quoted with approval and followed in M.R. Ry. Vellanki Srinivasa Jagannatha Rao Bahadur Garu Vs. M.R.

Ry. Gadicherla Venkta Gopalakrishna Rao Bahadur, Zemindar of Rajupeta, (Ayling, J.) produces the first impression that it decided that once the

proceedings are properly started u/s 145, there can be no challenge of those proceedings before the High Court. But the words ""must be

considered in relation to procedure"" do not support such a view of the case. They rather show that no point of jurisdiction can be made after the

initial stage but only a question of serious irregularity in procedure. For, if no such power of interference exists, there is nothing to consider. The

point argued in Kamalkutty v. Udayavarma Raja Valia Raja of Chirakkal 23 M.L.J. 499 Was only a question of jurisdiction and the observations

in the judgment refer to the only contention raised before the learned Judges. In M.R. Ry. Vellanki Srinivasa Jagannatha Rao Bahadur Garu Vs.

M.R. Ry. Gadicherla Venkta Gopalakrishna Rao Bahadur, Zemindar of Rajupeta, the irregularity complained of was that some of the evidence

was taken by another Magistrate, to whom part of the enquiry was delegated and I must take it that, in the opinion of his Lordship (Ayling, J.) it

was not such an irregularity as to justify an interference with the orders. In Criminal Revision Case No. 407 of 1920, Napier, J. who was the other

learned Judge who took part in Kamalkutty v. Udayavarma Raja Valia Raja of Chirakkal 23 M.L.J. 499 said ""It would have been better if he had

referred to their evidence in his order but I cannot treat the absence of such a reference as a serious irregularity far less, a want of jurisdiction"" -

showing a serious irregularity may be a ground for interference. (Otherwise these words are unnecessary). I will show later on that, where serious

irregularity is a ground for interference, the interference can be only under the (Charter Act) Government of India Act (S. 107) and not u/s 439 of

the Criminal Procedure Code.

Anyhow Mr. Govindaraghava Aiyar had to concede in the course of the argument, with reference to other decisions to which I shall presently

refer that there may be cases in which the High Court can interfere on account of serious irregularity in the proceedings of the Magistrate amounting

to improper exercise of jurisdiction or improper refusal to exercise his jurisdiction. In Mohammad Koolayappa Rowthan Vs. Sheik Abdul Khadir

Rowthan and Another, (to which Ayling, J. was a party) it was held that, where the finding of the Magistrate was that the parties had joint

possession Section 145 does not apply and the order was set aside. I agree with this decision and the cases in Nritta Gopal Singh v. Chandi

Charan Singh (1906) 10 C.W.N. 887 Makhan Lal Roy v. Barada Kanta Roy 9 C.W.N. 887 Manik Chandra Chakravarthi v. Preo Nath Kuar

(1912) 17 Cal. W.N. 205 on which it was founded See also Basanta Kumari Dasi v. Mahesh Chandra Laha ILR (1913) Cal. 982. I wish to point

out that the High Court could not interfere in such a case if the sentence in Kamalkutty v. Udayavarma Raja Valia Raja of Chirakkal ILR (1912)

Mad. 275 quoted above is understood as if it meant to lay down that the High Court can never interfere if it were satisfied that the proceedings

started properly. In Taranjan Bibi v. Asmuddi Bepari (1900) 4 C.W.N. 426 Dharani Kant a Lahiry Chowdhury v. Girija Kanta Lahiry

Chowdhury (1904) 8 C.E.N. 485 and Rada Raman Ghose v. Baliram Ram ILR (1904) Cal. 249 it was held that the possession of a partner or a

trustee or an agent is the possession of all the partners, co-trustees or principal and Section 145 should not be used to protect such possession and

orders u/s 145 were set aside. It is true that the first of these cases was dissented from in Narayana Asari v. Kandaswami Asari (1915) 3 L.W.

164 reversing the decision of Sadasiva Iyer, J. in Kandaswami Asari v. Narayana Asari (1914) 2 L.W. 107. But the dissent is on the merits as to

the proper scope of Section 145 and the nature of the possession governed by it. All these cases are authorities for the proposition that when

Section 145 is seemingly misapplied the High Court can interfere. If the correct view is that an agent''s possession or sole partner''s possession will

not be protected u/s 145 (as these Calcutta cases hold) but the Magistrate issued an order u/s 145, the High Court will interfere to set aside the

order. If the correct view is that such possession must be protected u/s 145 which is the view in Narayana Asari v. Kandaswamy Asary (1915) 3

L.W. 164 the High Court will interfere to set aside an order refusing to give such protection. The case in 3 L.W. 164 cannot be explained away on

the ground that the Magistrate in that case gave the order, that it was a single Judge of the High Court (Sadasiva Aiyar, J.) that vacated it and the

Judges who decided 3 L.W. 164 sitting in L.P.A. restored the Magistrate''s order. I imagine that if the Magistrate himself refused to pass an order

u/s 145 in that case the High Court would be equally empowered to interfere; for I do dot think anybody would contend for the absurd anamoly

that the High Court can interfere in L.P.A. with a wrong order of a single Judge of this Court but not with a wrong order of the Magistrate. Such a

view will involve the further anamoly that the High Court can interfere, where the Magistrate refused an order u/s 145 and a single Judge confirmed

it; but the single Judge himself cannot set aside the order of the Magistrate even if he knew it to be wrong.

Now I come to other instances of interference. In Vaithinatha Aiyar v. Suppalu Ammal (1914) I.L.W. 929, (to which Ayling, J. was a party) it

was held that there was no finding and the case was sent back. In Vein Malavarayan v. Kuppuswami Pillai (1920) 12 L.W. 315, Ayling and

Coutts Trotter, JJ. interfered in a case where there were several items, on the ground that all the claimants of the various items were not made

parties. I am clear, therfore that neither Ayling, J. nor Napier, J. meant what is sought to be attributed to the decision in Kamalkutty v.

Udayavarma Raja Valia Raja of Chirakkal I.L.R.(1912) Mad. 275. In Srimanavcdan Raja v. Parapravan Moidu (1919) 38 M.L.J. 73, no oral

evidence was taken and the case was sen back by two Judges of this Court. In Marudanayagam Pillai v. Mahomed Rowthen (1916) 34 I.C. 329,

Seshagiri Iyer, J. interfered on the ground that the Magistrate refused to take the evidence of witnesses tendered. He distinguished 36 Mad. 275.

In Panaganti Parthasarthy Nayanna Garu v. Pallikappu Venkatasamy Reddy ILR (1910) Mad. 138 , Miller, J. set aside the Magistrate''s order on

the ground that it dealt with the right to possession and not to the actual possession. In Kailash Behari Lal v. jai Narain Rat (1920) Pat. 288,

(Supplement to C.W.N.) the whole oral evidence was not considered and the High Court interfered. In Atal v. Uma Charan 20 C.W.N. 796 the

High Court (Chitty and Walmsley, JJ.) interfered on the ground that a judgment debtor should not be protected u/s 145.

In Lal Behari Suha v. Bajoy Sankar Sikdar (1906) 10 C.W.N. 181 the High Court set aside the order on the ground that the order was based

on what the Magistrate saw and heard and inferred at the local enquiry and which was not on the record. This case comes nearest to the case

before me. In Arumuga Goundan v. Venkatasubbier ILR (1907) Mad. 82 Wallis, J. set aside the order of the Magistrate on the ground that the

Magistrate himself ought to take the evidence and the order was based solely and substantially on evidence recorded by a Subordinate Magistrate.

I would, here point out that the decision in M.R. Ry. Vellanki Srinivasa Jagannatha Rao Bahadur Garu Vs. M.R. Ry. Gadicherla Venkta

Gopalakrishna Rao Bahadur, Zemindar of Rajupeta, , is inconsistent with this and as between the two, I would prefer to agree with the view of

Wallis, J. in Arumuga Goundan v. Venkatasubbier ILR (1908) Mad. 82.

Where there is initial want of jurisdiction, it is clear that the proceedings, though they may purport to be u/s 145, Cr.P.C., are not really

proceedings under it and the High Court can interfere u/s 439, Cr.P.C., but if the proceedings were properly started, all interference on the ground

of serious irregularity amounting to improper exercise of jurisdiction or improper refusal to exercise it can be only u/s 107 of the Charter Act. In

Bhaskarli Kesavarayudu v. Bhaskaram Chalapatirayudu ILR (1908) Mad. 318, the petition was filed u/s 439, Cr.P.C., and there was no question

of jurisdiction. This was pointed out by Sadasiva Aiyar, J. in Palani Chetty and Others Vs. Rathina Chetty and Others, , where he held that the

High Court had power to interfere under the Charter Act in an appropriate case. I may add that the High Court in Bhaskari Kesavarayudu v.

Bhaskaram Chalapatirayadu (1908) ILR 31 Mad. 318 considered the argument on the merits and held that Section 145 may be used to protect

the possession of a manager of a joint family following Sri Mohan Thakur v. Narasingh Mohan Thakur ILR (1899) Cal. 259, and distinguishing

Taranjan Bibi v. Asmuddi Bepari (1900) 4 C.W.N. 426; Dharani Kanta Lahirij Chowdhury v. Girija Kanta Lahiri Chowdhury (1904) 8 C.W.N.

485 and Radha Raman Ghose v. Baliram Ram ILR (1904) Cal. 249, (which were cited before them though the report does not give the

references) as ""cases of co-trustees or ordinary partners in which the rights of each trustee or partner are equal."" In Sundar Nath v. Barana Nath

ILR (1918) All. 364, the opinion of Walsh, J seems to be that, though the High Court cannot call for records u/s 439 or the Charter Act the party

can invoke the superintending power of the court, if the record had been sent for and the application had been admitted.

I would observe that I have not considered as it is irrelevant the particular irregularity which was the ground of interference in each of the cases

cited by me. It is possible that different Judges may take different views on the question whether a particular irregularity is grave enough to justify

interference. 1 have cited them only to show that the power exists provided that there is irregularity serious enough to vitiate the order in the

opinion of the Court.

In the present case, the plea of the counter petitioner was that Sellappa Goundan helped the petitioner (who was a young widow of 20) in all her

litigation with her mother-in-law. In para, (vi) the counter petitioner says "" Sellappa Goundan prosecuted the suit with Theeylay Ammal as the

plaintiff and carried on litigation in three courts, all of which ended in favour of Sellapa Goundan"" - as if Sellappa Goundan was then the real owner

and plaintiff was merely a benamidar. In view of the fact that the title at that time was in the plaintiff and is still in her and all that the counter

petitioner could plead in para, (v) isabare agreement without any conveyance, the suggestion that the title was in Sellappa Goundan is so absurd

that it only shows the extravagant position taken up by the counter petitioner. All the documents of evidence from the termination of the litigation

upto the present disputes was in favour of the petitioner. The Magistrate says "" The counter petitioners readily admit that the pattas and kist

receipts are also in the name of petitioner. There is therefore no doubt as to the legal right of petitioner to the lands. But the question is whether

petitioner was actually enjoying the lands."" There is a good deal of fallacy in these statements. The Magistrate seems to think that the kist receipts

and pattas are evidence of only legal right and not possession. They are strong evidence of possession which a court cannot lightly disregard. Again

by the use of the words ""actual enjoyment"" it is clear that the, Magistrate notions of possession (in law) are not quite correct. The Magistrate seems

to think that a person must deal with the tenants personally or collect the rents from them personally or periodically visit or walk on the land if the

dealings are to constitute possession in law. He later on says that Sellappa Goundan "" must have enjoyed the lands keeping the petitioner under his

protection."" According to the learned Magistrate, if A (a female who is the owner of certain lands) and B a friendly male who helps her, live

together and enjoy the income of the lands and B has all the dealings with the tenants such as negotiating the lease with a tenant, getting him to

execute the muchilika in A''s name and collects the produce and brings it to the house to be enjoyed by both, A has no possession whereas the

correct view is that, in such cases A is the person in actual enjoyment and legal possession and B is merely a servant. B has not even an agent''s

possession. On the view of the Magistrate, no Zamlndar who has a large estate consisting of several divisions and who manages each division

through a Samuddar and a Tanadar and no big landholder who, being at a distance, manages his lands through his clerk, is in possession of his

lands. It is the Tanadar of the zamindar or the clerk of the landholder that is in possession and if the Tanadar or the clerk chooses to rebel against

the master, his possession must be \protected u/s 145. It is far better that Section 145 does not exist than that such use should be made of it or

such use \vhould not be interfered with by a High Court. If the Magistrate has clearly recorded his findings as to the facts, I would have at once

interfered in favour of the petitioner. But there is no finding beyond the sentence "" In the nature of things, he must have enjoyed the lands, keeping

petitioner under his protection "" - a statement based on some speculative consideration which does not commend itself to me as probable or even

plausible. He first thinks that Sellappa Goundan must have helped the petitioner The next step is he would not have allowed the petitioner to enjoy

all the lands and keep quiet. If this meant that he would have claimed some remuneration for the help rendered, one would not quarrel with it. The

next step is that he (Sellappa) must have enjoyed all the lands keeping the petitioner in his protection a conclusion so perverse that I cannot accept

it as a finding. When we find that this conclusion is arrived at after getting rid of the documentary evidence by saying that it relates to the legal right

only (which is not correct) and by getting rid of the oral evidence by saying that it is unnecessary to enter into it - why, we are not told, - I am of

opinion there is no judgment or finding that any court can accept.

I therefore send back the case for a proper finding on the evidence on record and in the light of my remarks as to possession. Costs to abide the

result.

Memorandum of costs will follow.