Vishwanathan and Others vs Revenue Divisional Magistrate, Devakottai, Sivagangai District and Another

S. Tamilvanan, J.—This Criminal Revision Case has been preferred challenging the order dated 28.7.2011 made in Na. Ka. No. A1-4734-

2011 on the file of the Revenue Divisional Officer/Executive Magistrate, Devakottai. It is seen that the impugned order has been passed by the

Revenue Divisional Officer, Devakkotai u/s 145 of the Code of Criminal Procedure, whereby the petitioners 1 and 2 herein were directed to

appear before the first respondent on 8.8.2011, in view of the dispute regarding the title of property in S. No. 5-4 A35 of Devakottai Town.

Learned counsel appearing for the petitioners submitted that the petitioners herein were arrayed as ""A Party"" and the second respondent

Malarvizhi, W/o. Salaravanan, was arrayed as ""B Party"" for the said proceeding of the first respondent. Though civil suits are pending between the

parties before the competent Civil Courts, the petitioners herein were directed to appear before the first respondent as per Section 145 of Cr.P.C.

Learned counsel for the petitioners submitted that the impugned order is against law since neither the title nor the possession could be decided by

the Revenue Divisional Officer/first respondent herein when the matter is pending before the Civil Courts.

The first respondent has filed counter. Wherein it has been stated that in Devakottai Town, Thiruppathur Road, Town Survey Ward ''A'' Block

15 TS No. 5/4A35 there are shops and residential houses. In respect of possession and enjoyment, there was a dispute between the second

respondent and the petitioners. Hence, the Inspector of Police, Devakottai Town Police Station sent a letter to the first respondent for taking

action u/s 145 Cr.P.C. Notice was issued to both the parties seeking their explanation and on 8.8.2011, both the parties were present before the

first respondent herein and at the request of the petitioners, the matter was adjourned to 18.8.2011. In the mean time, the petitioners filed the

present criminal revision case.

Mr. J. Anandkumar, learned counsel for the petitioners, submitted that there is no breach of peace, so as to invoke Section 145 Cr.P.C. by the

first respondent herein. He further submitted that the possession of the property was admittedly with the petitioners and there are civil suits pending

between the petitioners and the second respondent herein and the second respondent has not prima facie made out any case that she was

dispossessed from the property and further contended that the second respondent is not residing permanently at Devakottai. In support of his

contention, he has filed a copy of the plaint in O.S. No. 9 of 2011, on the file of the District Munsif, Devakottai and also filed a copy of the plaint

in O.S. No. 88 of 2009 on the file of the Court of Subordinate Judge, Devakottai.

The suit in O.S. No. 88 of 2009, was filed by the second respondent herein against one Seethai Ammal, through her power agent Muthaiah,

seeking a decree declaring that the deed of cancellation dated 4.5.2007 registered as Document No. 1688 of 2007 on the file of Sub Registrar,

Devakkottai purporting to cancel the deed of settlement dated 31.12.2004 registered as Document No. 2891 of 2004 on the file of the Sub

Registrar, Devakottai as void ab-initio and non-est'' in the eye of law and for other consequential relief

The suit in O.S. No. 9 of 2011 was filed by the second respondent through her power agent Muthaiah against the first petitioner herein, namely

Vishwanathan, S/o. Nagalingam, and another one N. Viswanathan, S/o. Laxmanan, seeking a decree for declaration that the second defendant

therein N. Viswanathan, S/o. Laxmanan is the tenant of second respondent herein and for injunction restraining the said Viswanathan, S/o.

Laxmanan, not to hand over the possession of the property to the first petitioner herein.

As contended by the learned counsel for the petitioners, even from the plaint averments in O.S. No. 9 of 2011, the possession of the property

was with the said Viswanathan S/o. Laxmanan. The relief of declaration of title and consequential injunction sought for in the suit has to be decided

by the Civil Courts where the suits are pending. In the aforesaid circumstances, the first respondent has issued the impugned notice dated

28.7.2011, to the petitioners u/s 145 Cr.P.C. In the notice, it has referred that the same was issued regarding the dispute of the ownership or title

of the property.

In the counter filed, the first respondent has specifically stated that he is the competent authority to see the records and to solve the civil disputes

and further stated that the object of Section 145 Cr.P.C. is to ascertain the possession of the property. However, in support of the counter, the

first respondent has not filed any copy of the report given by the concerned Inspector of Police, to show that there was any breach of peace so as

to invoke the provisions of Code of Criminal Procedure.

The Hon''ble Supreme Court in Amresh Tiwari v. Lalta Prasad Dubey and Another, AIR 2000 SC 1504: (2000)4 SCC 440 : (2000) SCC

(Cr) 806 : LNIND 2000 SC 648, in para 13, has held as follows:

We are unable to accept the submission that the principles laid down in Ram Sumer case would only apply if the civil Court has already

adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case is laying down that multiplicity of litigation

should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been

held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of

the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.

The Hon''ble Apex Court has categorically held that when possession of the property is being considered in a suit by the Civil Court and the

parties are in a position to approach Civil Court for seeking adequate protection of the property, during the pendency of the dispute, a parallel

proceedings u/s 145 of Cr.P.C. should not continue, between the parties.

In the case of V. Jeyachandran @ Chandran v. The Sub Divisional Magistrate and Revenue Divisional Officer and 3 Others LNIND 2002

Mad 1525 : (2002) 1 MLJ (Crl) 850 this Court has held that it is a settled proposition of law that when once the Civil Court has taken note of the

civil dispute between the parties with reference to declaration of title or possession of an immovable property, it is not open to the Executive

Magistrate to entertain any application, even to decide the possession of the property. In order to invoke Section 145 of the Code of Criminal

Procedure, there should be a report from the competent police officer that there was law and order problem or is any possibility for breach of

peace in that area where the immovable property is located. Admittedly, no such report has been filed by the first respondent along with the

counter filed by him.

As contended by the learned counsel for the petitioner, to initiate proceedings u/s 145 of Cr.P.C. the concerned Executive Magistrate, should

have subjective satisfaction based on the complaint given by the police and the other materials. In the instant case, admittedly, Civil suits are

pending between the parties. In the case of V. Jeyachandran @ Chandran v. The Sub Divisional Magistrate and Revenue Divisional Officer and 3

Others (supra), this Court has found that while issuing notice to both parties, the Executive Magistrate has not made out grounds for his subjective

satisfaction that there could be breach of peace on account of the dispute between the parties, hence the proceeding is prima facie not sustainable.

In R. Thiagarajan v. K. Angamuthu 1996 (2) LW (Crl.) 615, His Lordship Mr. Justice M. KARPAGAVINAYAGAM has held that are

enquiry u/s 145 of the Code of Criminal Procedure should be initiated only when the mandatory provision of Section 145(1) of the Code of

Criminal Procedure has been complied with, by way of passing a preliminary order, giving out all the necessary details and reflecting the grounds of

satisfaction arrived at by the Magistrate; otherwise, the entire proceedings would become illegal.

In Kailasa Thevar and Another v. Ramiah and 42 Others 1994 (1) LW (Crl) 201, His Lordship Mr. Justice K.S. ARUNACHALAM has

held that there must be a preliminary order u/s 145(1) Cr.P.C. and that order must clearly state the reasons and grounds on which the subjective

satisfaction was based and also show that the Magistrate had applied his mind in passing the preliminary order.

In the instant case, no doubt, no final order has been passed by the first respondent, however, it has been made clear that civil suits are

pending regarding the same immovable property and it is not in dispute that civil suits relate to the parties to the proceeding initiated u/s 145 of the

Code of Criminal Procedure. In the aforesaid circumstances, while issuing notice u/s 145 of Code of Criminal Procedure, the Executive Magistrate

should have satisfied himself based on the materials available before him. In the instant case, though counter was filed by the first respondent, in

order to show that there was subjective satisfaction, no supporting document was produced. Neither the petitioners nor the respondents have

stated, anything to show that there was any criminal case registered by the concerned police so as to make out a case for subjective satisfaction

and to initiate the proceeding u/s 145 Cr.P.C. On these circumstances, I am of the view that there is no material on the side of the first respondent

to take action against the petitioners u/s 145 Cr.P.C. Hence, in the light of the decisions referred to above, and on the facts and circumstances, I

find it just and reasonable to allow this revision.

In the result, this Criminal Revision Case is allowed and the order passed in Na. Ka. No. A1-4734-2011 on the file of the Revenue Divisional

Officer/Executive Magistrate, Devakottai, the first respondent herein, is hereby set aside.