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Chaminanattil Balakrishnan and ors. Vs. O.P. Muhammed and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1976CriLJ1322
AppellantChaminanattil Balakrishnan and ors.
RespondentO.P. Muhammed and ors.
Cases ReferredIn V.V. John v. P.C.P. Mammu Haji
Excerpt:
- .....of the code of criminal procedure, 1898, in m. c. no. 3 of 1974 on the file of the executive first class magistrate perintalmanna, and is filed by the b party in the proceeding. the subject-matter of his proceeding is a land used for raising seedlings known as 'mele nadukkandam enna nhattukandam' comprising in r s. no. 307/4 of mooniyur village.2. the case of the a party is that this property was taken on an oral lease by him from his father alavikutty haji in the year 1960 fixing an .annual rent of 7 paras of paddy and thereafter he has been in actual possession and enjoyment of the game. this land is used by him for raising seedlings for the purpose of cultivation in his other paddy-lands having an extent of about 5 acres. he has been paying rent and obtaining receipts for the same.....
Judgment:
ORDER

S.K. Kader, J.

1. This criminal revision petition arises out of an order passed in a proceeding under Section 145 of the Code of Criminal Procedure, 1898, in M. C. No. 3 of 1974 on the file of the Executive First Class Magistrate Perintalmanna, and is filed by the B party in the proceeding. The subject-matter of his proceeding is a land used for raising seedlings known as 'Mele Nadukkandam enna Nhattukandam' comprising in R S. No. 307/4 of Mooniyur Village.

2. The case of the A party is that this property was taken on an oral lease by him from his father Alavikutty Haji in the year 1960 fixing an .annual rent of 7 paras of paddy and thereafter he has been in actual possession and enjoyment of the game. This land is used by him for raising seedlings for the purpose of cultivation in his other paddy-lands having an extent of about 5 acres. He has been paying rent and obtaining receipts for the same from the lessor. Similarly, he has been paying land revenue for this land which is included in Patta No. 291. The assignment deed relied on by the B party is a sham document not supported by consideration and no possession passed under the said document to the B party. This document was got executed to defeat his tenancy right, at a time when his father was very old and sickly, in collusion with his younger brother who is a shareholder in the tile factory run by the B party.

3. The B party contended that this property was purchased by them under Ex. B-1 assignment deed dated 23-7-1973 from the father of A party for the purpose of removing clay required for the production of tiles in Janatha Tile Factory owned by them and that in pursuance of this they are in possession of this property. The sons of Alavikutty Haji were aware of this assignment. On 24-11-1973 some persons at the instance of Moideen, son of the assignor, under Ex. B-1, trespassed upon this property. Another attempt was also made to trespass upon this land on 15-12-1973, Though the matter was reported to the police, no action was taken by them. The A party filed a petition claiming himself to be a tenant before the Land Tribunal, Tirurangady, for purchasing the jenm right in this land and this petition was rejected on 19-1-1974 and after the dismissal of this petition the police proposed proceedings under Section 145 of the Code of Criminal Procedure in respect of this property.

4. Both parties filed affidavits and documents. On hearing both sides, the Executive First Class Magistrate held that the claim of actual possession of the disputed property by A party is true and therefore A party was declared to be entitled to retain such possession of the disputed property until ousted in due course of law.

5. The counsel for the petitioners attacked the said order on two grounds and submitted that the order of the Executive First Class Magistrate is vitiated by illegality and should be set aside. The first ground urged on behalf of the petitioners is that though both parties have filed affidavits, the Executive First Class Magistrate has not considered any one of them; this is a clear illegality which has vitiated the order and caused serious prejudice to the petitioners and on this ground alone this order is liable to be set aside, The next ground of attack is that the decision of the Executive First Class Magistrate is based on Ex. A-13 which has not been properly proved in the case.

6. I shall now deal with these points one by one. It was argued on behalf of the petitioners that the learned Executive First Class Magistrate has violated the mandatory provision in Sub-section (4) of Section 145 of the Code of Criminal Procedure, 1898, which will hereinafter toe called the Code, that he did not consider the affidavits filed on either side, that the order does not indicate that he has applied his mind, that this Court has held in Narayanankutty Menon v. Sekhara Menon : AIR1964Ker308 that an order of this nature is improper and invalid and therefore on this short ground this order has to be set aside and the matter sent back for disposal afresh after considering the affidavits filed by the parties. The counsel appearing for the A party contended that though the Magistrate has not discussed the merits and demerits of the affidavits and considered the affidavits as such, there are other documents filed on the side of the A party which will prove his possession and therefore, even if it is assumed that the Magistrate has not considered the affidavits, the order may not be set aside on this ground. The point raised before this Court is that the court below has violated a mandatory provision in Section 145 of the Code and that this has vitiated its order and caused prejudice to the petitioners. After amendment of this section by Act 26 of 1955, affidavits assume importance in an enquiry under Section 145 of the Code, as oral evidence has been dispensed with. The purpose of this amendment was to eliminate delay in the proceeding and to enable the court to consider affidavit evidence. So after the amendment, the affidavits take the place of oral evidence. Under Sub-section (4) of Section 145 of the Code, the Magistrate is required to peruse the statements, documents and affidavits put in by the parties. The provisions prescribing the procedure to be adopted in respect of the action to be taken under this section are mandatory and should be strictly followed. The Magistrate is not expected to weigh the evidence, but he is required to consider the affidavits, statements and documents filed in the case. Though he is not expected to give detailed reasons for accepting or rejecting the affidavits, he should make it apparent in his order that he has applied his mind to them. The word 'peruse' has not been defined in the Code and therefore, we have to find out its ordinary dictionary meaning. 'Peruse' means to go through critically, read thoroughly or carefully. According to the Readers' Digest Great Encyclopaedic Dictionary, the word 'peruse' means 'read thoroughly or carefully; read; examine carefully'. It has been held in Raghubk Singh v. Gram Samaj : AIR1964All394 , that an order passed by the Magistrate without considering affidavits is liable to be set aside. In V.V. John v. P.C.P. Mammu Haji 1965 Ker LT 1184, this Court has held that the Magistrate before deciding the question of possession has to peruse the statements and also the documents and affidavits filed by the parties and if the order of the Magistrate does not show that he had considered the affidavits put in by the parties, such an order ex facie will be held to be improper. In Narayanankutty Me-non v. Sekhara Menon : AIR1964Ker308 , this Court has held that an order passed by the Magistrate without considering the affidavits put in by the parties is ex facie improper as not complying with the mandatory provisions of Section 145(4) of the Code and is liable to be set aside.

7. I have carefully gone through the order of the learned Magistrate and I find he has not perused the affidavits put in by the parties as required under the mandatory provisions in Sub-section (4) of Section 145 of the Code and his order is therefore ex facie improper and liable to be set aside.

8. The argument that the decision of the Executive First Class Magistrate is based solely on Ex. A-13 does not appear to be correct. The further contention is that this document has not been properly proved in this case. Ex. A-13 is the certified copy of the report of the local inspection conducted by the Revenue Inspector in pursuance of an order of the Land Tribunal in O. A. No. 592 of 1973 filed by A party to which B party also was said to be a party. No objection or affidavit is seen filed before the Magistrate by the B party challenging the correctness of the statements made in this report. In a proceeding under this section, a document need not be formally or strictly proved before it is considered by the Magistrate. It is argued on behalf of the A party that the order of the Executive First Class Magistrate can be supported on the basis of other documents considered by him. But, in view of my finding that his order is ex facie improper and is liable to be set aside, it may not be proper for this Court to consider these documents and go into the merits of the case on that basis. In the circumstances of this case, it cannot be said that Ex. A-13 is inadmissible in evidence.

9. It was represented on behalf of A party that in compliance with the order of the Executive First Class Magistrate, he had been put in actual possession of the property in question and that his possession may not be disturbed and he may be allowed to continue in possession of the property.

10. In the result I find that the Executive First Class Magistrate has violated the provisions in Sub-section (4) of Section 145 of the Code and the order passed by him is ex facie improper. I therefore set aside the order of the Executive First Class Magistrate without deciding whether on the documents referred to by him his order could be supported or not and send back the case for disposal afresh on the materials already on record in accordance with law and in the light of the observations made in this order after considering the affidavits filed by the parties in the case. The Magistrate will issue notice to the parties, hear their arguments, if any, and dispose of the case as expeditiously as possible. The parties will not be entitled to adduce any further evidence, either documentary or oral. If the A party has been put in actual possession of the property as represented by the counsel appearing for him, he will be allowed to continue in possession of the property subject to the final order to be passed by the Executive First Class Magistrate in the case.


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