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Sekhara Menon Vs. Executive 1st Class Magistrate, Ottapalam and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberO.P. No. 528 of 1958 and Criminal Revn. Petn. No. 256 of 1958
Judge
Reported inAIR1959Ker275; 1959CriLJ1082
ActsConstitution of India - Articles 226 and 227; Code of Criminal Procedure (CrPC) , 1898 - Sections 145; Evidence Act, 1872 - Sections 115
AppellantSekhara Menon
RespondentExecutive 1st Class Magistrate, Ottapalam and ors.
Appellant Advocate V.K. Krishna Menon,; T.N. Subramonia Iyer and; C.S. Padm
Respondent Advocate C.M. Kuruvilla, Government Pleader (for No. 1),; P. Govinda Menon and;
DispositionRevision dismissed
Cases ReferredDalmia Jain Airways Ltd. v. Sukumar Mukherjee
Excerpt:
.....jurisdiction not vested in the courts, and failure to exercise jurisdiction. (2) that the munsiff, had no jurisdiction to decide the question of the status of the 1st respondent in the criminal revision petition on the basis of the hindu succession act (xxx of 1956) and the hindu succession amendment act (xxviii of 1958) and (3) that the munsiff failed to exercise his jurisdiction inasmuch as he omitted to record that the 1st respondent was in possession. 5. as regards the question whether the munsiff exceeded his jurisdiction in deciding the question of status of the petitioner it was contended on behalf of the petitioner that this question, ought not to have been decided in a proceeding under section 145, it was the petitioner who raised this point and asked for an adjudication and it..........its properties, moveable and immoveable. the hereditary trusteeship of this temple vested in the valia raja of walluvanad. sekhara menon who is the petitioner in the original petition and criminal revision petition was originally a kariasthan of the valia raja who died on 31-1-1958.the 1st respondent in the criminal revision petition who is the 2nd respondent in the original petition, is the next seniormost member of the kovilakam and the 2nd respondent in the criminal revision petition who is the 3rd respondent in the original petition is the son of the late valia raja. after the death of the valia raja on 31-1-1958 the petitioner claimed to be in possession of the temple and its properties under a registered agreement exit. a3, alleged to have been executed by the valia raja on.....
Judgment:

Joseph, J.

1. The dispute which has given rise to this Original Petition and the Criminal Revision Petition is one relating to possession of the Thirumandham kunnu Bhagavathi Temple in Angadipurom desom and its properties, moveable and immoveable. The hereditary trusteeship of this temple vested in the Valia Raja of Walluvanad. Sekhara Menon who is the petitioner in the Original Petition and Criminal Revision Petition was originally a Kariasthan of the Valia Raja who died on 31-1-1958.

The 1st respondent in the Criminal Revision Petition who is the 2nd Respondent in the Original Petition, is the next seniormost member of the Kovilakam and the 2nd respondent in the Criminal Revision Petition who is the 3rd respondent in the Original Petition is the son of the late Valia Raja. After the death of the Valia Raja on 31-1-1958 the petitioner claimed to be in possession of the temple and its properties under a registered agreement Exit. A3, alleged to have been executed by the Valia Raja on 30-1-1958.

According to him he was functioning as Kariasthan from 1954 and he was appointed as agent by the Valia Raja on 1-5-1956. It is also alleged that the Valia Raja took a cash security of Rs. 5,000/-from him on 1-6-1957 and another sum of Rs. 5,000/-in December 1957 and that an agreement was executed and registered on 30-1-1958, appointing him as agent for 5 years and further providing that he was to reimburse himself the sums advanced, from the income of the temple and its properties. The petitioner who thus claimed to have an agency coupled with an interest moved the Executive First Class Magistrate of Ottappalam stating that Respondents I and 2 in the Criminal Revision Petition were attempting to disturb his possession.

On the report of the Police that a dispute likely to cause a breach of the peace existed, the Magistrate passed a preliminary order under Section 145(1) of the Cri. P. C. on 10-2-1958. On 5-3-1958 the Magistrate attached the temple and its properties and placed the same in the possession of a receiver. As the petitioner and the 1st respondent claimed possession and as the Magistrate was unable to decide the question he referred the question as to which party was in possession, to the District Mun-siff. Perunthalmanna under Section 146(1). The learned Munsiff took evidence and entered a finding in favour of the 1st respondent. On the basis of this finding the Magistrate declared the 1st respondent's possession and directed that the receiver should hand over possession of the temple and its properties to him. The Criminal Revision Petition is directed against this order,

2. In the Original Petition the petitioner seeks to quash the finding of the Munsiff on the question of possession and the order of the executive First Class Magistrate who is made the 1st respondent. It is stated that the findings of the Munsiff and the executive First Class Magistrate are illegal and without jurisdiction and the Original Petition is filed under Articles 226 and 227 of the Constitution as the petitioner has no right of appeal or revision against the finding recorded by the Munsiff. The two petitions were heard together. The parties will be referred to hereafter in accordance with their respective position in the Criminal Revision Petition.

3. Ordinarily the remedy of a person aggrieved by a decision under Section 145 is to file a suit in the Civil Court. The petitioner however urges that the decision is vitiated by illegality, exercise of jurisdiction not vested in the courts, and failure to exercise jurisdiction. The points raised by the petitioner' s learned Counsel are:

(1) That the Munsiff and the Magistrate had no jurisdiction to adjudicate on the genuineness and binding nature of the agreement executed by the Valia Raja in favour of the petitioner;

(2) That the Munsiff, had no jurisdiction to decide the question of the status of the 1st respondent in the Criminal Revision Petition on the basis of the Hindu Succession Act (XXX of 1956) and the Hindu Succession Amendment Act (XXVIII of 1958) and

(3) That the Munsiff failed to exercise his jurisdiction inasmuch as he omitted to record that the 1st respondent was in possession.

4. Before examining these points it is useful to refer briefly to the respective cases of the petitioner and the 1st respondent. According to the petitioner he was in actual physical possession of the temple and properties on the strength of the agreement Ext. A3 executed by the Valia Raja and registered on 30-1-1958 and his possession which was on the basis of an agency coupled with interest ought not to have been disturbed. The case of the 1st respondent is that the agreement Ext. A3 was not executed by the Valia Raja, that it was fabricated by the petitioner and that it is not binding on the successors of the deceased Valia Raja. It was therefore contended that the petitioner did not have possession of the temple and its properties but that he had only custody or detention as a servent or Agent of the Valia Raja and that such detention or custody did not become enlarged into possession at any stage. The question whether Ext. A3 was genuine and valid was thus principal point for decision because it was on the strength of Ext. A3 that the petitioner claimed possession. The learned Munsiff took elaborate evidence and came to the conclusion that Ext. A3 was not executed by the late Valia Raja. We are not concerned in these proceedings with the correctness or otherwise of this finding which can be challenged only in a separate suit as provided by Section 145 of the Criminal Procedure Code. The question whether Ext. A3 is genuine or not is a pure question of fact on which the Munsiff was entitled to enter a finding and it is neither necessary nor proper for us to examine the evidence on which this finding was arrived at. As held by the Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra, (S) AIR 1957 S. C. 264, the extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution is not to be exercised for interfering with findings of fact. It cannot be; said that the finding regarding Ext. A3 was unnecessary for the decision of the question. We are unable to hold that the learned Munsiff exceeded his jurisdiction in finding that Ext. A3 was not genuine.

5. As regards the question whether the Munsiff exceeded his jurisdiction in deciding the question of status of the petitioner it was contended on behalf of the petitioner that this question, ought not to have been decided in a proceeding under Section 145, It was the petitioner who raised this point and asked for an adjudication and it is not now open for him to say that the 'decision is bad merely because the question raised by him is decided against him. Sri V.K.K. Menon, learned counsel for the petitioner stated that he did not want an adjudication of this question by us in these proceedings. The mere fact that the Munsiff considered this point does not amount to an illegality, especially as his conclusion on the question of possession is mainly based on his finding regarding Ext. A3.

6. It is also contended that the learned Munsiff failed to decide whether the 1st respondent had actual possession. What the Munsiff held was that the petitioner had no possession but only detention or custody as a servant and that his status as servant or agent was not altered at any time and that the detention or custody did not become enlarged to such possession as would be protected under Section 145 or the Code. The possession of a servant is possession of the master. The view taken by the learned Munsiff is that during his life-time the Valia Raja was in possession and that such possession passed on to the 1st respondent. The objection that the Munsiff failed to exercise his jurisdiction is therefore without substance.

7. The original petition has been preferred under Articles 226 and 227 of the Constitution and it was stated that the latter Article was also invoked as the petitioner has no right to question the finding of the Munsiff by appeal or revision. The powers of the High Court under Article 227 have been considered in a recent decision of the Allahabad High Court in Ram Roop v. Bishwa Nath AIR 1958 All 456. After an exhaustive consideration of the reported decisions on the point, the principles have been stated in the following terms:

'1. The superintendence referred to in Article 227 of the Constitution includes judicial superintendence.

2. The power conferred by the Article is wide but not unlimited. The exercise of the power is discretionary and relief under the Article cannot be claimed as a matter of right. The principles regulating the exercise of the power are generally speaking the same as the principles on which writs can be issued under Article 226 but in a sense the power under Article 227 is wider as the High Court can sometimes issue directions in the exercise of that power which it could not do under Article 226.

3. The power under the Article can be exercised even in those cases in which no appeal or revision lies in the High Court.

4. The power should not ordinarily be exercised if any other remedy is available to the aggrieved party even though the pursuing of that remedy may involve some inconvenience or delay.

5. The power should not be used to correct mere errors of fact or law. Error of law may include a wrong decision on a question of jurisdiction.

6. The power is to be used sparingly only in appropriate cases in which the conscience of the court is pricked and it feels that immediate interference is called for as it is necessary to keep the Subordinate courts, or Tribunals within their bounds or to prevent some outrageous miscarriage of justice and grave results would follow if the power is not exercised. Whether a particular case is of this kind or not will depend on its own facts and circumstances. Such cases cannot obviously be exhaustively catalogued.'

8. The Supreme Court in considering the question of the court's powers under Article 227 of the Constitution has held in Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 S. C. 398, that the powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 226. Sinha, J observes:

'A Constitution Bench of this court examined the scope of Article 227 of the Constitution in the case of Waryam Singh v. Amarnath, 1954 S. C. R. 565: (AIR 1954 S. C. 215). This court, in the course of the judgment, made the following observations at p. 571 (of S. C. R.) : (at p. 217 of AIR):

'This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate courts within the bounds of their authority and not for correcting mere errors.'

'It is. thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature are not greater than the powers under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases either under Article 226 or 227, of the Constitution was not justified.'

9. In view of this, we are unable to agree with the decision on this point in AIR 1958 All 456, but so far as the decision on the other points in that case are concerned, we are in complete agreement. The impugned decision is mainly based on a finding of fact. The petitioner has the right to institute a suit in the Civil Court to obtain appropriate relief. There is nothing here to shock the conscience of the court as there might probably have been if the court had invoked the provisions of Section 145 to uphold the possession of the petitioner who. on the finding was only a servant or caretaker during the time of the late Valia Raja. This is a case in which the tribunal has acted within its jurisdiction and there are no errors apparent on the face of (the record. We are therefore of opinion that this is not a fit case for interference under Article 226 or 227 of the Constitution.

10. The matter arising for decision in the Criminal Revision Petition is the same as in the Original Petition. We have already pointed out that the proper remedy of the petitioner is to establish his rights, if any, in the Civil Court. No interference is called for in the Criminal Revision petition either.

11. In the result the Criminal revision Petition is dismissed. The Original Petition is dismissed with costs to respondents 1 and 2, each ofwhom will also get counsel's fee of Rs. 100/- fromthe petitioner.


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