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Sankara Pillai Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1972CriLJ1666
AppellantSankara Pillai
RespondentState and ors.
Excerpt:
.....on behalf of the 3rd respondent and he has been in possession thereafter. if there is any apprehension of breach of peace, the unsuccessful party should be bound down under section 107, criminal p. by a court delivery the property is placed in the hands of the person to whom delivery is effected and that will hold good against the whole world......against revision petitioner. that suit ended in dismissal. subsequent to that and after the present revision petitioner had taken delivery through court the second respondent, usmankutty. claiming himself to be an oral assignee from narayanan threatened to trespass upon the property and to prevent that the revision petitioner filed o.s. 408/1970 in the munsiff's court of alleppey for a permanent injunction against the 2nd respondent and from that suit i. a. no. 10937/1970 was moved for a temporary injunction. that petition was contested by the 2nd respondent and the learned munsiff on enquiry found that the present petitioner had actually obtained delivery through court and is in possession and allowed the prayer for interim injunction, in the order however an inadvertent mistake.....
Judgment:
ORDER

K. Sadasivan, J.

1. Against the preliminary order passed by the Executive 1st Class Magistrate. Alleppey under Section 145 of the Code of Criminal Procedure the claimant has come up in revision. The property involved in the proceedings is 3 acres and 10 cents of paddy land comprised in Sy. Nos. 200/1, 219/1 and 221/1 of Punnapra village. Alleppey which forms part of a 'Patasekharam, the total extent of which is 52 Acres. This property was outstanding on a mortgage and was sold in court auction in execution of the decree obtained on the mortgage and. purchased by one Ramachandran Pillai. who is respondent No. 3 to this petition. The revision petitioner is the power of attorney holder of Ramachandran Pillai. On the strength of the sale certificate the property was duly taken delivery of by the revision petitioner on behalf of Ramachandran Pillai on 19-2-1970 and ever since he has-been in actual possession of it. Before that one Hakeem and another Hameed claiming themselves to be mortgagees in actual possession of this property had filed a suit (O. Section 546 of 1966) along with one Narayanan, who had taken an assignment from the mortgagor pendente lite, for injunction against revision petitioner. That suit ended in dismissal. Subsequent to that and after the present revision petitioner had taken delivery through court the second respondent, Usmankutty. claiming himself to be an oral assignee from Narayanan threatened to trespass upon the property and to prevent that the revision petitioner filed O.S. 408/1970 in the Munsiff's Court of Alleppey for a permanent injunction against the 2nd respondent and from that suit I. A. No. 10937/1970 was moved for a temporary injunction. That petition was contested by the 2nd respondent and the learned Munsiff on enquiry found that the present petitioner had actually obtained delivery through court and is in possession and allowed the prayer for interim injunction, In the order however an inadvertent mistake had crept in regarding the survey number of the property. To set right that, C. M. A. 1/1971 had to be filed by the revision petitioner in the District Court of Alleppey and there also all the aspects of the matter were considered and the prayer was allowed. The C. M. A. was disposed of on the 2nd of January 1971. The petitioner has been continuing in possession even after that. The first respondent in the meantime by influencing the Police got a report filed by them to the effect that there is dispute of possession between the 2nd respondent on the one hand and respondents 3 to 5 on the other, which is likely to end in a breach of peace. It is on this report that the Executive 1st Class Magistrate initiated proceeding under Section 145 and passed the present preliminary order. The Sub-Inspector of Police on the basis of the preliminary order has turned out the petitioner's workers from the property and handed over possession to the Village Officer. These steps were taken without notice to respondents 3 to 5. The 3rd respondent was in fact at Trivandrum at the time. According to revision petitioner, there is no dispute of possession at all and that possession all along has been with the revision petitioner as mukthiar-holder for the 3rd respondent and such possession has been upheld also by the civil Court. Stating these facts the petitioner preferred a claim petition before the learned Magistrate, which having been dismissed, he has come up in revision.

2. On a review of the position in the light of the evidence and circumstances of this case. I am unhesitatingly of the view that the learned Executive 1st Class Magistrate has misdirected himself in initiating the present proceedings. It has well been brought out in the evidence that the property was taken delivery of through court by the present petitioner on behalf of the 3rd respondent and he has been in possession thereafter. When the present 2nd respondent threatened to disturb that possession, the petitioner instituted O.S 408/70 for a perpetual injunction against him and obtained an interim order restraining him from interfering with the petitioner's possession. In the face of these proceedings of the Civil Court the Executive 1st Class Magistrate ought to have abstained from interfering in the matter by starting proceedings under Section 145.

The object of Section 145. Cr. P.C. undoubtedly is to compel the parties to go to the Civil Court to settle their disputes and to get adjudication of their rights to immovable properties. When that is done by a competent Civil Court on the guise that there is likelihood of breach of peace between the parties, the Magistrate ought not to exercise his powers under Section 145, Criminal P.C. It is the duty of the Magistrate to give effect to the decisions of the Civil Courts and see, as far as possible, that the decrees of the Civil Courts are maintained. Otherwise, it would only amount to putting a premium upon the high-handed and unlawful activities of the other side. If really there is likelihood of breach of peace between two parties in such a situation the proper course open to the Magistrate is to take action under Section 107. Criminal P.C. AIR 1969 Mys 297 : (1969) Cri LJ 1250.

The position therefore is that in regard to possession, the Criminal Court should yield to a finding entered by the Civil Court.

Criminal Courts in disputes as to immovable property are merely stopgaps and their orders are only meant to ensure peace and the dispute is finally decided by a competent civil Court. It is one of the maxims of administration of justice that a conflict of decisions should be avoided and where disputes are really of a civil nature the orders of competent civil courts should be given precedence over the orders of criminal courts. : AIR1962All68 .

The following observations of Misra. J. in AIR 1968 Orissa 239 : (1968 Cri LJ 1629) are pertinent in this connection.

Where recent delivery of possession has been effected through Civil Court, it is the paramount duty of the Criminal Court to see that the possession of the successful party is maintained. If there is any apprehension of breach of peace, the unsuccessful party should be bound down under Section 107, Criminal P.C.

In the present case also as is evident from the materials made available that the property was recently taken delivery of through court and it is in the possession of the present petitioner in pursuance of that. The duty of the Criminal Court therefore is to protect that possession and if that possession is disturbed, the pro-per Section under which proceedings are to be initiated is Section 107 of the Criminal Procedure Code. Learned Executive 1st Class Magistrate has. as already stated, misdirected himself as is evident from the following observation appearing in his order. He would observe:

Since the veracity of the delivery kychit itself is questioned. I do not think that the petition of the claimant can be allowed. It is dismissed.

The learned Magistrate has not understood the significance of a court delivery. By a court delivery the property is placed in the hands of the person to whom delivery is effected and that will hold good against the whole world. Anybody who thinks that his rights have been violated by such delivery, must seek appropriate remedies through appropriate forum and there is no use of such persons going about saying that they challenge the delivery. The 2nd respondent, who challenges the delivery, traces his claim and title from the mortgagor who was himself a party, to the suit. It is not open to such a person to assail the delivery. The proper course for the learned Magistrate to adopt in the present case was to drop the proceedings when it appeared to him that the property was recently delivered over to the present petitioner. The plea that there is apprehension of breach of peace is a hollow plea, as it is the duty of the Police to avert such breach of peace by taking appropriate steps against persons who take law into their own hands by protesting against the court delivery. The revision petition in the circumstance is allowed and the order of the learned Magistrate passed under Section 145 (1) of the Code of Criminal Procedure is vacated.


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