Anantanarayana Ayyar, J.
1. Buddala Veerabhadrarao of Samalkot filed a petition before the learned Sub-Divisional Magistrate, Kakiuada praying for an order under Section 145, Criminal P.C. in his favour against six respondents cited therein. The learned Sub-Divisional Magistrate forwarded the petition to the Station House Officer, Samalkot for enquiry and report. On the report of the Station House Officer, the learned Sub-Divisional Magistrate took the case on file as M.C. No. 8 of 1963 and passed a preliminary order under Section 145, Criminal P.C. on 22.11.1963. He also attached the properties in dispute and appointed the Revenue Inspector of Samalkot to take possession of the property with crop which stood on it. Subsequently, the case was transferred to the Additional District Muusif Magistrate, Kakinada and became M.C. No. 12 of 1961 on his file. Affidavits and documents were filed on both sides. After due consideration of those affidavits and documents, he passed final order dated 28.7.1964 declaring that the first respondent was in possession of the disputed property. The petitioner, Buddala Veerabhadra Rao felt aggrieved with that order and filed this revision petition in this Court directly. He did not prefer any revision petition before the learned Sessions Judge, Rajahmundry before approaching this Court by way of revision. This revision petition was admitted by Sharfuddin Ahmed, J. on 28.7.1964.
2. The relevant facts, as appearing from the-records, are as follows: On 6.12.1955, a registered lease deed was executed by Velpuii Satyanarayana (deponent in affidavit No. 7 filed on behalf of the petitioner) and his brother, Velpuri Seshabrahmam (Rule 4) in favour of the petitioner for a period of five years. The lease was to run up to 6.12.1960. Meanwhile, the Andhra Tenancy Act of 1956 came into force from 9.9.1956. The first respondent, as sole plaintiff, filed a suit (O.S. No. 381 of 1960) in the Court of the District Munsif, Kakinada against two defendants namely, the present petitioner and Velupuri Seshabrahmam (who is the fourth respondent erein) for adjustment of the petitioner from the suit land and putting the plaintiff namely, the first respondent herein in possession. In that suit, the first respondent contended that he was in possession and the petitioner (first defendant) had trespassed into the land and evicted the farm servants of his, (Rule 1) of 30.10.1960. That suit was dismissed by the learned District Munsif, Kakinada by his judgment dated 30.8.1961.
Petitioner filed a petition under Section 145, Criminal P.C. in M.C. No. 32 of 1962 on the file of the Additional District Munsif Magistrate, Kakinada against nineteen respondents. The first respondent in that case was the same as the first respondent in the present case. Respondents 2 and 4 in that case were the-same as respondents 2 and 3 in the present case, Velpuri Seshabrahmam, who is the fourth respondent in. the present case, was not a party in that case. The first respondent remained ex parte. Respondents 3 and 5 to. 19 in that case also remained ex parte. The only two persons who contested that case were Nalam Satyara, and Putra Bullyrags who were respondents 2 and 4 in that case and are respondents 2 and 3 herein. They pleaded that the registered lease deed in favour of the petitioner expired on 31.3.1961, that the petitioner had vacated the land and that Seshabrahmam (Rule 4) who was the landlord, immediately took possession of the land and thereafter leased it to respondents 2 and 3 (respondents 2 and 4 in that case) by a lease deed dated 10.7.1961 and that respondents 2 and 3 took possession of the schedule land cultivated the same peacefully and that the other respondents in M.C. No. 32 of 1962 had no concern with the land. Both sides filed affidavits. On behalf of the contesting respondents 2 and 3 herein (Rule 2 and Rule 4 therein) affidavit No. 8 was that of N. Tirumalarao,. Village Munsif of Samalkot. The learned Additional District Munsift Magistrate (Shri D. Krishnam Raju). held, after a discussion of the evidence that the lease-deed by the fourth respondent herein namely, Velpuri Seshabrahmam in favour of respondents 2 and 3 (Rule 2 and Rule 4 in that case) was executed only with an intention of taking possession from the petitioner and that no actual possession was taken from him. In the result, he passed an order under Section 145 Criminal P.C. on 15.10.1962 declaring that the-petitioner was entitled to be in possession of the land until evicted there from in due course of law and forbidding the respondents from disturbance of such possession until such eviction. In those proceedings, affidavit No. 9 on behalf of respondents 2 and 3 Rule 2 and Rule 4 in that case was that of Seshabraharn who is the fourth respondent in the present case.
3. Subsequently, the petitioner filed M.C. No. 2 of 1963 before the Taluq Magistrate, Kakinada for an order under Section 144, Criminal P.C. against Duddampudi Venkatraju (Rule 1 herein) and others alleging that the latter caused disturbance leading to breach of the peace in connection with his (petitioner's) enjoyment of the land. The learned Taruq Magistrate had the matter enquired into by the Station House Officer. Ultimately the learned Magistrate passed an order as follows:
The station house officer, Samalkota enquired into the matter and reported that it is purely a civil dispute and suggested that he apprehended breach of peace in this regard to the possession of land and suggested that action under Section 145, Criminal P.C. is appropriate.
In the circumstances I do not consider that an order under Section 144, Criminal P.C. is necessary. If the petitioner is really aggrieved he can file a petition under Section 145, Criminal, P.C. before the Sub-Divisional Magistrate, Kakinada.
4. Accordingly, the petitioner filed M.C. No. 8 of 1983 before the learned Sub-Divisional Magistrate. The latter also forwarded the petition to the Station House Officer, Samalkot for enquiry and report. On receiving the report of the Station House Officer, the learned Sub-Divisional Magistrate passed a preliminary order under Section 145 Cr.P.C. on 22.11.1963. He also passed an order under Section 145 Cr.P.C. attaching the petition schedule properties in dispute and appointed the Revenue Inspector to take possession of the property and the crop.
5. The contention of the petitioner in his petition is as follows: He took possession of the property under the lease deed dated 6.12.1955 and was in possession and enjoyment ever since. In M.C. No. 32 of 1962 the order was passed in favour of the petitioner. The sum of Rs. 2396.00, which was in deposit as the income from the land during the attachment, was given to the petitioner. In pursuance of that order the petitioner was in possession of the said land. He raised the crop in the year in which he filed M.C. No. 8 of 1963 also.
6. The contention of the first respondent in his written statement is as follows. He took the property under a lease deed (Ex-D 1) dated 28.6.1963 from the fourth respondent and was in possession and enjoyment of the property till the Revenue Inspector took possession of the standing crop when attached by the Court.
7. Respondents 2 and 3 filed a written statement to the following effect. They took lease of the petition schedule land from the fourth respondent for 1961-1962 and 1962-63 and cultivated the land. When the land was under their cultivation, the Court Receiver came and took possession hi M.C. No. 32 of 1962. When the Receiver auctioned the standing crop, one Goli Venkata Rao was the highest bidder. After realization of that crop, Goli Venkatarao delivered possession of the land to the fourth respondent. The fourth respondent cultivated the land for some time and then leased it to the first respondent for the year 1963-64 by lease deed (Ex. D-1) dated 28.8.1963 and put him in possession. In pursuance of the said lease, the first respondent was in possession of it and cultivated the same raisin the crop on the said land. The first respondent was in possession when the Revenue Inspector took possession of it in M.C. No. 8 of 1963.
8. The fourth respondent also filed a written Statement in line with the above contentions.
9. Of the six respondents, respondents 5 and 6 remained ex parte before the learned Sub-Divisional Magistrate in M.C. No. 8 of 1963. The case was transferred to the file of the learned Additional District Munsiff Magistrate. Respondents 2 to 6 failed to attend the Court of the learned Additional Munsif Magistrate and he set them ex parte. The first respondent alone took part in the enquiry. When I refer to the petitioner or respondent of any number hereafter in this order, I adopt the denomination in M.C. No. 12/1964 (M.C. No. 8 of 1983) unless the context indicates otherwise.
10. On behalf of the petitioner, eight affidavits were filed. Affidavits Nos. 1, 2, 3, 4, 5 and 8 were of persons who owned lands in the vicinity. They averred that the petitioner was in possession. Affidavit No. 6 was by a farm-servant of the petitioner. Affidavit No. 7 was by Velpuri Satyanarayana who, along with the fourth respondent, had leased the land originally to the petitioner. The petitioner filed the order in M.C. No. 32 of 1962 dated 15.10.1962 as his only document (Ex. P-1).
11. On behalf of the first respondent, seven affidavits were filed. Affidavit No. 1 was by a person who claimed that he was a farm servant under the fourth respondent and cultivated the land for the year 1963-64 and that later on he became farm-servant under the first respondent when the latter took it on lease from the fourth respondent. Affidavits Nos. 2, 3, 6, 7 are by persons who owned land in the vicinity and they spoke to the possession by the first respondent. Affidavit No. 4 is by Neelam Tbirumalarao, village munsif who deposed that the first respondent was in possession and that the petitioner was not in possession. He also said that he knew personally about the cultivation as he was cultivating his own land which was near the disputed land. Affidavit No. 5 is by the karnam who deposed that he was personally aware of the cultivation by the first respondent as he was frequently visiting the said lands.
12. The learned Magistrate proceeded to weigh the evidence on the following basis:
The possession contemplated under Section 145, Criminal P.C. is the actual possession of the subject of dispute without reference to the merits of the claims of any of the disputing parties to a right to possess the same. The Court can decide only the fact of possession of the lands in dispute on the date of the preliminaiy order and the declaration to be made by the court as also to say as to who is actually in possession on the date of the preliminary Order.... Hence the order in M.C. No. 32 of 1962 is of little avail to the petitioner to claim to be in possession of the land in dispute. Moreover in the light of such an order in his favour the petitioner who alleges that he is in possession of the land on the date of the preliminary order ought to have filed a criminal case against the respondents for criminal trespass or for disobeying the valid orders duly promulgated by a public servant.
Without doing so, the petitioner filed a petition under Section 144, Criminal P.C., before the Taluk Magistrate which was dismissed alleging that a proceeding under Section 145, Criminal P.C. alone lies and not one under Section 144, Criminal P.C. The learned Counsel for the respondent in this connection argued that had the petitioner been really in possession of the property at the time he filed the said petition, he would never have filed a petition under Section 144, Criminal P.C., and that he would have certainly filed the petition under Section 145, Criminal P.C. alone. He stated that it is, therefore, evident for all the above reasons that the petitioner was never in possession of the disputed land on the date of the preliminary order or before that date during that year. Hence considering the evidence of the persons who filed affidavits on behalf of the first respondent the documents filed by him and the probabilities of the case, I find that Rule 1 alone is in possession of the petition schedule properties on the date of the preliminary order.
Apparently, the learned Muusif Magistrate felt impressed by the contention of the learned Counsel for the repondent which was referred to, though he has cot specifically stated so. On discussion of the evidence the learned Munsif Magistrate preferred affidavits on behalf of the first respondent to the affidavits on behalf of the petitioner for the following main reasons:
(1) Deponents in affidavits filed on behalf of the petitioner did not give details as to where their land was actually situated, whereas the deponents who gave affidavits on behalf of the first respondent mentioned that they were owners of land adjoining land in dispute and were village officers.
(2) The deponents in affidavits on behalf of the petitioner do not give the Survey numbers of the neighbouring lands which they owned but the deponents in the affidavits on behalf of the first respondent gave survey numbers.
(3) The affidavits filed on behalf of the petitioner are brief whereas the affidavits filed on behalf of the first respondent gave more details.
(4) The affidavits filed by the village Munsif and Karnam were entitled to great weight and there was no reason for disbelieving their affidavits.
In the result, the learned Additional Munsif-Magistrate passed the following order:.I declare that Rule 1 is in possession of the petition schedule properties on the date of the preliminary order and that he is entitled to the possession thereof until he is evicted therefrom in due course of law and I forbid all disturbance of such possession until such eviction.
13. The learned Advocate for the first respondent raised a preliminary objection that this revision petition is not maintainable. In Ramayya v. Venkata (S) AIR 1956 Andhra 97 a Division Bench of this Court held as follows:(at p100).In our view, the salutary practice to be followed in this High Court should be that ordinarily the High Court will not entertain a revision petition unless the aggrieved party approached an inferior Court in the first instance and will not deviate from that practice, except on special exceptional or extra ordinary grounds. When there are no such grounds, the mere fact that a revision has been admitted by this Court cannot make any difference in the enforcement of the rule of practice, for, the farty, who with open eye ignored the practice and led a revision direct to the High Court cannot take advantage of his deviation from the rule of practice.
On the facts of that particular case, the learned Judges held as follows: (at p. 100)
The finding is one of fact based upon appreciation of the entire evidence placed before the Magistrate. We do not find any exceptional circumstances for interfering with the finding. The revision petitions are dismissed.
The same question came up for consideration before a Full Bench of this Court in A, Sriramamurthy v. State of Andhra Pradesh : AIR1959AP377 . The learned Judges of the Full Bench referred to the earlier decision of the Division Bench in (S) AIR 1056 Andhra 97 (supra) and observed as follows: (at p. 380)
The learned Judges expressed the opinion that the practice in vogue in all the High Courts except Madras would carry out the intention of the Legislature and would better serve the interests of the public from the administrative and judicial points of view. We think that no further elaboration is needed and that this ruling embodies the correct principle and should be adhered to. The Legislature has advisedly conferred co-ordinate jurisdiction on the several authorities in regard to these matters and there is no reason why effect should not be given to legislative intent. There does not seem to be any justification to permit parties to by-pass the lower Courts and resort to the High Court straight way without sufficient grounds.
However, this is not an inflexible rule of invariable application. It is always open to a party to move directly this Court when there are exceptional circumstances in any case. The High Court is invested in express terms with jurisdiction to receive revision petitions even in the first instance. But this should be confined to the cases of special nature. The normal and usual practice should be to require the parties to approach first subordinate Courts for redress, before Section 439 of the Code is invoked.
Dealing with the particular case which was before them it was observed as follows: (at p. 380):
In the case on hand, we do not propose to direct the petitioners to approach the lower Court since the matter has been pending nearly three years and some important questions of law are involved. These cases will go back to the Bench for disposal on merits.
The question is whether there are exceptional circumstances which justify the disposal of the Criminal Revision Case by this Court without directing the petitioner to approach the lower appellate Court. The learned Advocate for the first respondent points out that the special reason which existed in that case of the Full Bench namely, the matter having been pending for nearly three years and some important questions of law being involved do not exist in this case. It is true that there is no long pendency of this revision case in this Court; for, the revision petition was filed in this Court as recently as 26.8.1984. There has been elaborate argument before me in this case by both sides relying on various decisions on a point of law viz., what is the effect of a prior order under Section 145, Criminal P.C., which has not been considered adequately by the learned Munsif Magistrate. I find that this is an important point of law and that therefore, this is a special case as contemplated by the learned Judges of the Full Bench. I, therefore, overrule the preliminary objection.
14. I now proceed to deal with the question of law urged by the learned Advocate for the petitioner namely, that the prior proceedings in M.C. No. 32 of 1962 operate as res judicata.
15. In Aran Sordar v. Hara Sundar A.I.R. 1923 Cal 95 the relevant facts were as follows. There were Section 145, Criminal P.C., proceedings which resulted in an order D/- 29.8.1919 declaring the first party to be entitled to retain possession until evicted in due course of law from the disputed property and forbidding disturbance of such possession until such eviction. Subsequently, on 18.5.1922, the learned Magistrate passed an order regarding the same land and regarding a dispute between practically the same parties, The learned Magistrate passed a preliminary order on that day under Section 145, Criminal P.C., calling on the parties to produce evidence and also attached the properties. The order was sought to be set aside in revision. A Division Bench of the Calcutta High Court consisting of Ghose and Chotzner JJ., observed as follows (at p. 96):
The identity of the parties and the lands being established it was clearly the duty of the Magistrate to see that the possession of the 1st party adjudged under the previous order wits not disturbed. That order is binding on the parties and the unsuccessful party cannot be allowed to disregard it and disturb the possession of the other party without hiving recourse to law. It is not the proper course for the Magistrate to iuitiite fresh proceedings under Section 145 of the Criminal P.C., for maintaining the peace....
We are of opinion, however, that when legal proceedings are taken under the Code of Criminal Procedure which amount to an abuse of process of the Court and the object of which is only to harass the patty who has got a previous order of the Magistrate in his favour, the Court has ample jurisdiction to interfere and ought to interfere under Section 107 of the Government of India Act.
In that case, the party who sought to disturb the possession in the second proceedings had acquired the interest of one V.N. Roy who was the principal person of the second party against whom the original order under Section 145, Criminal P.C. had been passed. The learned Judges also observed as follows (at p. 96):
It is no doubt true if things stood alone, it was perfectly competent to the Magistrate to initiate such proceedings as he thought proper.... In this case, however it was the duty of the Magistrate, as already pointed out, to maintain the first party in possession under the order passed previously under Section 145, Criminal P.C. and not to start fresh proceedings under that section.... The result of such a course would be that the binding effect of an order under Section 145, Criminal P.C., would be disregarded and any number of propeediog? may be initiated by any disappointed party leading to no result whatsoever, a position which would surely be intolerable.
16. In Haripado Mazum lar v. Dhaui Ahamad AIR 1935 Cal 494 the Sub-Divisional Magistrate of Mainckgunge passed an order under Section 144, Criminal P.C., in favour of one patty. It was challenged before a Division Bench of the 'Calcutta High Court consisting of Guha and Bartley, JJ. The learned Judges held in their judgment dated 24.7.1934 as follows:
The Magistrate thought that a previous order of the year 1919, made under Section 145 of the Code, stood in his wav so far as the initiation of fresh proceeding under Section 145, Criminal P.C., was concerned. With this view of the case, we are not in agreement as the question to be taken into consideration by a Criminal Court under Section 145, Criminal P.C., is the question as to the present possession of the parties concerned....
The order passed under Section 144, Criminal P.C., by the Magistrate, is set aside and it would be quite legal and competent for a Magistrate to initiate a proceeding under Section 145, Criminal P.C.
Another order under Section 145, Criminal P.C. was passed by the Sub-Divisional Magistrate, Mainkgunge on 7.12.1931 against Hamid and thirty-eight others. This order was challenged before a Division Bench consisting of Lort-Williams and Cunliffee J., in Elimuddin v. Umed Ali AIR 1936 Cal 859. The learned Judges referred to the previous decisions and observed as follows (at p. 681):
The order of 1919 was passed against the party of U.N. Roy. His interest passed in 1921 to Hara Sundar, the present owner of the property. and the present landlord of the tenants of the opposite party.... It is upon this basis namely, that the property and the parties are the same in the two sets of proceedings, that my judgment herein is based. That being so, in my opinion, the learned Sessions Judge is right in his contention that the proceedings in 1919 are binding upon the parties concerned in the proceedings of 1934, Consequently, as provided by Section 145, Sub-section (6) the party declared to be entitled to possession in 1919 is entitled to be protected against disturbance of such possession until evicted therefrom in due course of law. Otherwise it would be possible for the opposite party to continue to harass his opponents by instituting successive proceedings under Section 145.
The learned Judges explained the decision in AIR 1935 Cal 494 (supra) as follows: (at p. 660).
But the decision of Guha and Bartley, JJ., so far as we have been able to ascertain both from the record and the remarks addressed to us by the learned advocates, proceeded upon the assumption that the parties, at any rate, were not the same and, therefore, the order of 1919 could not be a bar to the proceedings in 1934 between different parties.
17. In Baburam v. Deo Narain : AIR1958Pat222 the relevant facts were as follows. On 30.10.1952, a Magistrate passed an order under Section 145, Criminal P.C. in favour of the first party regarding certain property. On 30.12.1955, a proceeding under Section 144, Criminal P.C. was drawn up by the Sub-Divisional Magistrate and converted by him by an order dated 9.3.1956 into a proceeding under Section 145, Criminal P.C. Dayal, J., after referring to certain earlier decisions of the Patna High Court held as follows: (at p. 222).
It has also been laid down in those cases that the object of the Legislature will be frustrated if the party who has, on tne finding that he is not in possession, been forbidden to disturb the possession of the successful party until evicted in due course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he is still in possession or has been able to regain possession by force. The principles laid down in these cases clearly showed that the preliminary order...under Section 145, Criminal P.C., for the second time between the same parties and over the same subject-matter was not sustainable in law.
19. In Rasi Gounder v. Muthu Gounder 1964 Mad LJ (Cri) 343, it was observed by the Madras High Court as follows: (at p. 344).
It seems to me that having already passed an order under Section 145, Criminal P.C. it is not open to the Magistrate to again take proceedings under the said Section on grounds such as those alleged by the petitioner....
In that case, there had been an earlier order under Section 145. Criminal P.C. in M.C. No. 42 of 1960 in which it hid been held that the petitioner had been declared to be in possession and respondents had been directed not to disturb the petitioner's possession. Also, respondents had filed a suit in the Civil Court to establish their alleged right and it was pending. The petitioner filed a later petition alleging that the respondents again disturbed his possession and the learned Magistrate had taken it on file as M.C. No. 5 of 1962 under Section 145, Criminal P.C. It was that proceeding which the learned Judge had to deal with. He quashed those proceedings observing as follows:
The remedy contemplated in such circumstances is not one under Section 145, Criminal P.C. but under relevant provisions of the Penal Code as for instance Section 188, Indian Penal Code.
20. In Ambika Thakur v. Emperor AIR 1939 Pat 611 it was observed as follows : (at p. 618).
The whole object of the Section (145) is to stop a breach of the peace by deciding which party is to remain on the land and which party is to seek his remedy is the Civil Court. Breaches of the peace will continue, and the object of the Legislature, will be frustrated if the party who has, on the finding that he is not in possession been forbidden to disturb the possession of the successful party until eviction in due course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he is still in possession or has been able to regain possession by force and thus either compel the successful party to go to the Civil Court or to uoerce the Magistrate to proceed again under Section 145, Criminal P.C. This will be definite encouragement to disobedience of orders under this section. There has been some difference of opinion as to whether once the possession of a party has been declared under Section 145, Criminal P.C., a second proceeding under the section is permissible.... It was however held by one of us in Indra Deo Singh v. Kesho Singh 18 Pat LT 896 : AIR 1938 Pat 41, that a Magistrate has jurisdiction to start a fresh proceeding but whether he should do so or not will depend upon the circumstances.... A third party, not bound by the order in a proceeding under the section, is in a different position from a party who has been definitely prohibited from disturbing the possession of the successful party. It may also be that the position of the parties to a Section 145 proceeding has changed since the passing of the order under this section. For instance, if in a proceeding under the section, A was prohibited from interfering with the possession of B who was held to be in possession, and A afterwards comes forward with the allegation that he has since then obtained possession under, say, a lease or a purchase from B, this may be a good ground for the Magistrate to start a Section 145, Criminal P.G. proceedings in case there be apprehension of a breach of the peace. But the party prohibited from interfering with the possession of another party cannot, in our opinion, be heard to say against that party that he has disobeyed the order and has thus been able to retain or obtain possession. To allow such a plea will be to defeat the object of the Legislature in enacting Section 145, Criminal P.C. There will be no end to disputes and apprehension of breach of the peace which the Section is designed to stop.
21. The learned Advocate for the first respondent has relied on a number of decisions and raised a contention that the possession on the date of the preliminary order has to be decided without taking into account the prior order under Section 145, Criminal P.C. In Gainda Lal Sharma v. Bhishamber Nath AIR 1949 EP 231, it was observed as follows:
As stated above, Section 145, Criminal P.C., is concerned solely with actual possession and the question how the party came into possession is not the matter for enquiry in criminal proceedings under that Section nor is the Magistrate concerned with rightful possession or is competent to deal with right to possession....
In that case, the question of the effect of a prior order under Section 145, Criminal P.C., did not arise.
22. In Hosnaki v. State : AIR1956All81 , the learned Judges of the Allahabad High Court observed as follows : (at p. 82)
For a Magistrate to have jurisdiction to proceed under Section 145 there must exist a dispute likely to cause a breach of the peace. It is only concerned with the existence of a dispute; it is not concerned at all with the question how it arose, which party is on the aggressive or unreasonable, whether the dispute had been decided remotely or even recently by a Court of competent jurisdiction or whether an alternative remedy is open to the party that seeks assistance....
They also observed as follows : (at p. 85)
A decision of a competent Court on a question of title, even if followed by delivery of possession to the successful party, is not conclusive evidence of the party's possession in an enquiry under Section 145; a Magistrate is not bound by any law to give his finding in accordance with the decision regardless oi the actual evidence. If the evidence satisfies him that the other patty is in actual possession, he is bound by law to declare him to be in possession despite the decision of the Civil Court or the delivery of possession by it. The admissibility of a previous judgment is governed by the provisions of the Evidence Act. and there is no provision which makes a judgment of a Civil Court conclusive....
In that particular case, the preliminary order was passed by the Judicial Magistrate under Section 145, Criminal P.C., on 23.8.1952 and when the enquiry was still pending before him, the party opposed to the applicant instituted a suit under Section 20 and Section 232, of the Zamindary Abolition and Land Reforms Act, against the applicant and the suit was decreed on 10.9.1953 in favour of that opposite party by the revenue Court which declared that party to be entitled to retain possession of the land in dispute. No declaration of that opposite party's title was given by the revenue Court. The opposite party produced a copy of the judgment dated 10.9.1953 before the learned Magistrate and the latter immediately declared that opposite party to be in possession of the land in dispute and forbade the applicants from interfering with the possession of the opposite party. By then, he had recorded the evidence of the applicants in full and was in the midst of recording the opposite party's evidence; he passed his order on 18.9.1953. The applicants filed revision petition before the High Court and contended that they were hit by the learned Magistrate's refusal to consider the evidence recorded by him and by his considering himself bound by the decree of the revenue Court. The learned Judges concluded as follows : (at page 87).
My conclusions are that the jurisdiction rightly assumed by the Magistrate in the present case was not destroyed by the decision on title of the revenue court, that the judgment of the revenue court was not conclusive but was only a piece of evidence to prove that the opposite party was in possession on 10.9.1953, that it was open to the applicant to prove that the possession of the opposite party ceased after 10.9.1953, that the Magistrate was bound to give him an opportunity to produce evidence and to receive all evidence that he produced...and that the order passed by the Magistrate without recording the evidence was illegal.
In that case, the question of the effect of an earlier order under Section 145 Criminal P.C. against a party and on his contention that in spite of that earlier order under Section 145 forbidding him from interfering with the possession of the opposite party (until evicted therefrom in due course of law), he (contending party) continued in possession or obtained possession illegally by disobeying the earlier order under Section 145 Criminal P.C. did not arise and was not considered. I do not find any need to express an opinion about the vie v expressed in the above rending. But the above decision does not affect the other decisions which I have already referred to about the effect of an earlier decision under Section 145 Criminal P.C. on a person who was a party to that earlier decision.
23. In Venkatachalam v. Palyam : AIR1953Mad594 the duty of the Magistrate when there is in force an order of permanent injunction by a Civil Court was laid down as follows:
Things went on smoothly till 1941 and again the counter-petitioners attempted to disturb the possession of the petitioner. Thereupon the petitioner filed Order Section No. 144 of 1941 on the file of the D.M.C. Poonamalle for an injunction restraining the counter, petitioners from interfering with his possession and enjoyment and the suit was finally disposed of on 15.8.1941, giving a permanent injunction against the counter petitioners from interfering with the possession of the petitioner. Having failed in their attempts the counter-petitioners clandestinely in league with the village munsif, who happened to be on their side, obtained patta for the land. Thereafter, on representations being made by the petitioner to the higher authorities, the patta was cancelled and retransfer was ordered on 12.3.1948. In spite of this, the counter-petitioners again started giving trouble and the Magistrate under these circumstances instead of declaring the petitioners to be in possession of the properties has put a premium upon the unlawful activities of the counter-petitioners and he declared the counter-petitioners to be in p3ssession of the property. It is the duty of Magistrate in cases like this to support the decision of civil Courts and see as far as possible that the decrees of civil Courts are maintained. Otherwise it would only amount to putting a premium upon the high-handed and unlawful activities of the other side.
24. In Narayan Asari v. Kandasami Asari 3 Mad LW 164 : AIR 1918 Mad 967 it was held that Section 145 Criminal P.C. was concerned solely with actual possession, whether lawful or unlawful, whether in contemplation of law enjoyed by the possessor in his own right or on behalf of others. In that case, the effect of a prior order under Section 145 Criminal P.C. was not considered.
25. Thus, the decisions relied on by the learned Advocate for the petitioner establish the following. When a prior order under Section 145, Criminal P.C. has been pasted against a party, he cannot be allowed to raise a contention in later proceedings which will be inconsistent with the prior order or which will detract from the effect of that order. He cannot be allowed to plead that he was in possession in contravention of the earlier order or in spite of that order. He cannot be allowed to contend once more that whatever the earlier order might have been he is still in possession. He cannot be allowed to urge that he has been able to regain possession by force. Any contention, such as referred to above, cannot be considered to be raising a bona fide dispute degrading possession and an order can be passed straightway against him such as an order under Section 144 Criminal P.C., or an order that he should be prosecuted under Section 188 Criminal P.C. But, if for any reason that party who had been originally successful in Section 145 proceedings, has applied for an order under Section 144, Criminal P.C. but still the learned Magistrate declined to start proceedings under that Section and compelled that party to apply for an order under Section 145 Criminal P.C. in his favour, an order under Section 145 cannot be refused to him on that ground. In particular, denial to him of such relief will amount to completely depriving him, for no fault of his, of the protection which he is entitled to by virtue of the original order under Section 145 Criminal P.C. in his favour against a person who was a party to the earlier order under Section 145 Criminal P.C. For the above principles to apply, there must be substantial identity of the property as well as the relevant parties concerned in the later proceedings as compared to the earlier order under Section 145, Criminal P.C.
26. Proceedings under Section 145, Criminal P.C., are of a quasi-civil nature. The order under Section 145(6), Criminal P.C. declaring one party to be entitled to possession of the disputed property and forbidding the opposite party from causing disturbance of possession until evicted in due course of law is akin to a decree of a civil Court giving a declaration in favour of one party and issuing a permanent injunction (until evicted in due course of law) restraining the opposite party from disturbing possession of the former party. Of course, if the party in whose favour the order under Section 145, Criminal P.C. is issued is evicted from the property in due course of law, that order ceases to have effect on the opposite party. But, until such eviction takes place, the opposite party is bound by that order. It is the right and duty of the Magistrate to give due respect to an order of his own Court in a prior proceeding under Section 145, Criminal P.C. and to see that it is obeyed and enforced. If he finds in a case that one party is disobeying the earlier order of his (Magistrate's) Court which is still in force, and that the proper course is to file a complaint against that party under Section 188, I.P.C. and not to pass a fresh order under Section 145, Criminal P.C. it is open to him to file such complaint.
27. In AIR 1939 Pat 611 (supra) some examples have been given of cases in which a party against whom a prior order had been issued under Section 145 (Criminal P.C.) can put forward bona fide claim and ceases to be bound by the prior order under Section 145, Criminal P.C. against him.
28. In Mukhram v. State AIR 1953 All 818 Agarwal, J. observed in a revision petition against the order of a Magistrate under Section 145, Criminal P.C. as follows : (at p. 619)
The learned Counsel appearing for the applicants is unable to say that there was no evidence on the record in support of the conclusion arrived at by the Magistrate. All that he says is that if the evidence were properly considered, the only conclusion that could be arrived at was that the applicants were in possession. The learned Sessions Judge has pointed out certain circumstances which in his opinion-should have led the Magistrate to, draw a different conclusion from the one he actually drew. It is quite possible that if I were sitting as a Court of appeal, I might have come to the same conclusion at which the learned Sessions Judge arrived; but I think in the exercise of revisional jurisdiction this is not a proper thing to do...his (Magistrate's) order should be interfered with only upon very strong grounds. When there was evidence in support of the conclusion arrived at by the learned Magistrate, his conclusions of fact should not be disturbed....
29. In the present case, there is no doubt or dispute about the fact that the property concerned in these proceedings under Section 145, Criminal P. C. is identical with the property concerned in the earlier proceedings in M.C. No. 32 of 1962. The learned Munsiff-Magistrate was right when he said that the point for determination was to decide who was in actual possession of land with reference to a specific point of time namely, the date of the preliminary order, dated 22.11.1983. But, one conspicuous feature in this case is that the rival claimants who claimed actual direct possession are the petitioner and the first respondent who were both parties to M.C. No. 32 of 1962 and are bound by the final order dated 15.10.1962 in that case. By that final order, the same Court namely, the Additional District Munsiff-Magistrate, Kakinada had passed an order declaring the petitioner to be in possession and entitled to be in possession until evicted therefrom in due course of law and forbidding the first respondent from disturbing such possession. Though that order was in force against the first respondent, still he (Rule 1) was claiming to be in possession, It had to be enforced against the first respondent unless he could show special grounds that after the order in M.C. No. 32 of 1982, the petitioner had been evicted from the land in due course of law or had voluntarily surrendered possession The learned Munsiff-Magistrate has to respect and enforce his prior order of his own Court when necessary and not allow it to be openly flouted and treated as of no value.
The first respondent was certainly not in possession as on 15.10.1962. So the evidence has to be scrutinized to see as to whether his claim that he got possession after petitioner had lawfully parted with possession or been dispossessed were true. If the first respondent claimed that he dispossessed the petitioner by force the learned Munsiff-Magistrate should have rejected that claim. For, he could not encourage the first respondent to disobey an order of the Court of the same learned Munsiff-Magistrate which was order of a permanent nature. But the first respondent claimed that he got it indirectly through the fourth respondent who, according to the written statements filed by the respondents, had got possession from Goli Venkatarao. This Goli Venkatarao was a lessee from the receiver in M.C. No. 32 of 1982 whose possession amounted to possession of the party successful in the proceedings in that case. In effect possession of Goli Venkatarao was possession of the petitioner from the time the final order in that case was pronounced on 15.10.1982. The learned Munsift-Magistrate had to consider the question whether it was probable and believable that the petitioner, who had diligently managed to maintain possession in proper proceedings against various persons claiming from the fourth respondent, would have failed to take possession from Goli Venkatarao or would have allowed Goli Venkatarao to deliver possession to the fourth respondent, the very person under whom respondents 2 and 3 had been claiming possession unsuccessfully in the earlier proceedings (M.C. No. 32 of 1962). If the petitioner were to allow Goli Venkatarao to deliver possession to the fourth respondent, the petitioner would be completely losing the benefit of the proceedings in M.C. No. 32 of 1962 which he had taken and of his successful defence in Order Section No. 381 of I960 to maintain and safeguard his possession against the persons putting forward claims to be in possession as lessees under the fourth respondent. Petitioner could have easily taken possession from Goli Venkatarao and prevented the latter from delivering possession to any one excepting the petitioner, by approaching Court, if necessary.
30. The learned Munsif-Magistrate has relied on Ex. D. 1, and Ex. D. 2. While relying on these two documents, he has failed to consider whether these were binding on the petitioner and whether these could have been brought into existence by respondents 1 and 4 by themselves in contrast to Ex. p. 1 which was binding on the first respondent. His observation that the order in M.C. No. 32 of 1962 is of little avail to the petitioner to claim to be in possession of the lands in dispute has been arrive at with : out considering the aspect mentioned above.
31. The learned Munsif Magistrate has relied on, the affidavit of the village Munsiff, Tirumala Rao and referred to him in his order as a disinterested witness. He has failed to consider the fact that the same Village Munsif had given an affidavit in favour of respondents 2 and 3 against the petitioner in M.C. No. 32 of 1962 in the same court and that affidavit of the Village Munsiff had not been accepted as true.
32. The learned Munsif-Magistrate had failed to take into consideration the fact that, in the present case, in effect, the fourth respondent is claiming to be in possession through the lessee (Rule 1) just as in the prior case (M.C. No. 32 of 1962) the claim put forward against the petitioner was that the fourth respondent was in possession through his lessees, respondents 2 and 3. In both the cases, it was alleged that the fourth respondent had managed to take-possession and that the petitioner had parted with possession. The petitioner was lessee not under the fourth respondent alone but under the fourth respondent and his brother, Velpuri Satyanarayana and was entitled to be in continuous possession as against the lessons under the Andhra Tenancy Act (18 of 1956) and had been effectively maintaining possession up to 15.10.1962. Velpuri Satyanarayana, who is also beyond doubt, lesser of the petitioner along with the fourth respondent, has asserted that the petitioner atone has all along been continuing in possession. The value of the affidavit of Velpuri Satyanarayana in these circumstances had to be assessed in the above back ground. The learned Munsif-Magistrate has failed to consider in that manner.
33. The learned Munsif-Magistrate has observed in his order that the petitioner ought to have filed a criminal case against the respondents in view of the order (Ex. P. 1) in his favour. It was also open to the petitioner to file a petition under Section 144, Criminal P.C. with a view to prevent any trespass into his land. He was not bound to allow a parly to trespass into the land and afterwards file a ciiminal case. He did file a petition under Section 144, Criminal P.C. before the Taluq Magistrate. The Taluq Magistrate passed an order (Ex. D. 3) refusing order under Section 144, Criminal P.C. and directing the petitioner to file petition under Section 145, Criminal P.C. Therefore, the petitioner had to file the petition under Section 145, Criminal P.C. Simply because the petitioner could not get benefit under Ex. P. 1 of getting order under Section 144, Criminal P.C. he cannot as made to suffer by holding that he cannot get an order under Section 145, Criminal P.C. either. Respondents 4, 5, 6 in these proceedings (M.C. No. 12 of 1964) were not parties in M.C. No. 32 of 1962 and were not directly bound by the order (Ex. P. 1). Ex. P. 1 cannot be treated as a positive handicap to the petitioner depriving him of what relief he can get if he did not have Ex. P. 1.
34. In discussing the evidence, the learned Munsif-Magistrate has preferred the affidavits on the side of the respondents on the ground that they mentioned some more details than found in the affidavits of the petitioner like Survey Nos. etc. that ground is not of such decisive value as render it unnecessary to consider the various features mentioned by roe above.
35. I, therefore, set aside the order of the learned Additional District Munsif-Magistrate, allow this revision petition and direct him to dispose of the matter afresh, after considering all aspects of the case, in the light of the observations made above. The case is remanded accordingly.