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Subba Nayak Vs. Trincal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad460
AppellantSubba Nayak
RespondentTrincal and anr.
Excerpt:
.....as to call for the issue of a restrictive order. 17. under the circumstances it was necessary to inquire who was in possession before an order could be passed respecting the rights of parties in possession or for the attachment of the property when the possession was doubtful, and if the possession of the priest were established and the magistrate was satisfied that continuance with the building would probably occasion a riot which he could not otherwise prevent, it would be competent to him to give orders to the priest to abstain from proceeding with the erection......thereafter lead to conflict between the roman catholics and hindus in respect of processions. the district magistrate recorded a note in red pencil to the following effect: 'how am i to interfere? i think we had better have a deposition on oath.'4. on the 1st april he accordingly took a deposition from the zamindar, who then stated that the removal of the house and erection of a church would cause 'a row' in his village, and that he believed there would be a riot. it seems probable from other evidence that at the time this deposition was taken the house had in fact been removed and the foundations of the church laid. having taken his deposition, the district magistrate passed an order in the following terms : whereas, from the petition and sworn affirmation made, i believe that a breach.....
Judgment:

1. Arunachala Muppan occupied a house and site in the village of Sevalpatti and on 21st November 1883 sold them by a registered sale-deed to the Rev. J. B. Trincal who purchased them for the purpose of erecting a church on the site.

2. Subba Nayak, zamindar of Sevalpatti thereupon filed a suit in the Court of the District Munsif of Sriviliputtur against the Rev. J. B. Trincal, claiming the recovery of the site on the ground that Arunachala Muppan held it from him on a service tenure and had no transferable interest. He also applied for the issue of an ad interim injunction restraining the purchaser from erecting a church pending the decision of the suit. The Munsif granted the injunction, but on the 15th March the District Judge, on appeal, finding that the priest was in possession, dissolved it. At the same time the judge intimated that, if in the result the claim was decreed, the priest would be bound to remove any erection he might place on the land and to restore the site to the condition in which it was when he obtained possession.

3. On the 26th March the zamindar presented a petition to the District , Magistrate (J. B. Atkinson), in which he adverted to his claim to the site, the institution of the suit, and the issue and dissolution of the injunction, and stated that the only converts in the village were Arunachala Muppan, his two sons, and his brother. He represented that a catechist had already complained that the villagers had interrupted worship carried on at the site and the complaint had been dismissed, that the house sold by the Muppan was situated close to his palace and in a line with houses belonging to persons of the Hindu religion, and that the erection of a church on the site was calculated to cause annoyance to him and to his people as well as to other Hindu inhabitants and to cause a breach of the peace. He explained that he apprehended that the erection of a church would interfere with the passage of processions with music and would lead to the institution of processions by the Roman Catholics which would be an innovation on ancient custom and provoke a breach of the peace, and he prayed that the Magistrate would prohibit the erection of a church within the kasba village of Sevalpatti, and thereby secure the preservation of peace and order which had theretofore obtained in the zamindari. It appears that the petitioner did not aver that there was any immediate probability of a breach of the peace owing to the dissolution of the injunction. He intimated that he apprehended that the erection of a church might thereafter lead to conflict between the Roman Catholics and Hindus in respect of processions. The District Magistrate recorded a note in red pencil to the following effect: 'How am I to interfere? I think we had better have a deposition on oath.'

4. On the 1st April he accordingly took a deposition from the zamindar, who then stated that the removal of the house and erection of a church would cause 'a row' in his village, and that he believed there would be a riot. It seems probable from other evidence that at the time this deposition was taken the house had in fact been removed and the foundations of the church laid. Having taken his deposition, the District Magistrate passed an order in the following terms : Whereas, from the petition and sworn affirmation made, I believe that a breach of the peace is likely to occur owing to the intention of Arunachala Muppan and of the Rev. J. B. Trincal to build a chapel in the village of Sevalpatti and whereas a suit is now pending between the parties and others regarding the land, house, &c;, on and in which it is proposed to erect the said chapel, I hereby give notice to Arunachala Muppan and the Rev. J. B. Trincal to attend this Court in person or by agent under Sections 145 and 147 of the Code of Criminal Procedure on Saturday, the 26th April 1884, for the purpose of this inquiry. Meanwhile no building can go on.'

5. On the 3rd April the zamindar filed another petition, in which he brought to the notice of the District Magistrate that the Deputy Magistrate had commenced proceedings on a report received from the police and had fixed the 5th April as the date on which the parties should appear.

6. The District Magistrate called for these proceedings. It appeared that on the 28th March the Inspector of Police reported to the Deputy Magistrate what had occurred in connection with the site, adding that a catechist had requested him to go to Sevalpatti to facilitate the erection of the chapel, that he went there and found that a building had been completed by two persons, Karupan and Vairavan who claimed the site as their ancestral property, that both parties had a number of men in attendance, and that he apprehended a breach of the peace. The Deputy Magistrate on receiving this report had directed that neither party should be allowed to interfere with the ground and that the principal persons on each side should be brought before him to be bound over to keep the peace. The District Magistrate ordered that the Proceedings of the Deputy Magistrate should be stayed and the records forwarded to him. The , Rev. J. B. Trincal, on receiving the order of 1st April, filed a statement in which he contended that neither of the sections mentioned by the Magistrate were applicable to the circumstances; and he maintained that, as he had acquired possession in virtue of his purchase, and the District Court had by the dissolution of the injunction refused to prohibit him from continuing the erection of the building he had commenced, it was incumbent on the Magistrate to protect him in the exercise of the right and to take measures to restrain those from whose violence interruption to his proceedings was to be apprehended.

7. He asserted that after the passing of the order of the Civil Court the zamindar had, in contempt of that order, caused one of his pariah dependents to erect a hut on his foundation and to make a show of living therein, and that the zamindar's people had also trespassed on the site and were prepared to use force against him.

8. On the 26th April the District Magistrate took a deposition from the priest. The priest declared, inter alia he had no apprehension of a riot, but that it was his intention to proceed with the building whether there was a riot or not.

9. The District Magistrate on the 26th April recorded that it appeared to him unnecessary to proceed further, but that, at the request of both parties, he would adjourn the case and examine the Inspector of Police, and that he was satisfied that the priest, although he had no possession, was endeavouring to obtain possession by force.

10. On the 29th April a petition was presented to the District Magistrate purporting to be filed by Karupan and Vairavan. In this it was admitted that Arunachala Muppan had sold to the priest the site adjoining a site on which there stood a house they claimed as their own, but it was asserted that under colour of the sale the priest had endeavoured to take possession of their site also, and it was prayed that they might be protected in its enjoyment.

11. On 3rd May the Inspector was examined and deposed to his apprehension that a riot would break out if the priest was allowed to continue the erection of a church.

12. The District Magistrate thereupon passed the following order:

As certain persons named Karupan and Vairavan are proved and admitted; to be in possession of the land in dispute, and as the priest has another building in which services are now being conducted, I declare that the present possession shall not be altered without due sanction of law obtained in proper course. The chapel building must stand over, and I forbid all disturbance of possession till a Civil Court decides. Section 145, Criminal Procedure Code.

13. The order of the District Magistrate has been referred by his successor (J. Lee-Warner) to this Court for revision on the grounds that it is ultra vires, being in direct contravention of the order of the District Judge that the priest was entitled to remain in undisturbed possession till the decision of the civil suit, that the persons the District Magistrate had found to be in possession had been placed there by the zamindar after the dispute had arisen, and that no breach of the peace was likely to occur except under the orders of the zamindari.

14. We could not interfere to disturb the finding of the District Magistrate that a breach of the peace was likely to occur. The evidence of the Inspector of Police strongly suggested the probability of a disturbance of the peace, and he had represented he had been moved by what he witnessed in the village to make a special report to the Magistrate. The referring officer may be right in his opinion that no breach of the peace would have occurred except at the instigation, or under the orders of, the zamindar, and it is certainly the duty of a Magistrate, before he interferes with the exercise of rights, to consider whether he cannot protect persons in the enjoyment of their rights by taking a caution bond from the persons from whom or at whose instigation the breach of the peace may be apprehended. But, if a probability of a breach of the peace is established and a Magistrate instead of taking security acts under Section 145 or 147, then, although the other course might be the wiser and the more politic, this Court could not, as a Court of Revision disturb his order on that ground only, if the case was one in which on other grounds such an order would be legal. Nor would it be a good ground for objection to the Magistrate's order that the District Court had refused an injunction. The District Court considered the plaintiff had failed to prove that his civil rights might be permanently affected, so as to call for the issue of a restrictive order. The Magistrate might nevertheless come to the conclusion that the issue of a prohibitory order was expedient to secure the preservation of the peace, and this was a consideration to which he would be entitled to have regard notwithstanding that the Civil Court had on other grounds refused an injunction.

15. The order of the Magistrate in this case appears, however, open to objection on this ground, that it is not made between the parties to the proceedings--the zamindar and the priest--and is not in the terms prescribed by that section when neither of the parties to the proceedings establishes that he is in possession.

16. It is not apparent whether Karupan and Vairavan were made parties. The zamindar alleged that the priest was in possession of the site in dispute, viz., the site purchased from Arunachala Muppan. The priest alleged he had been in possession and had been dispossessed after the order of the Civil Court by Karupan and Vairavan, acting under the instigation of the zamindar, but Karupan and Vairavan in the petition of 29th April made no claim to possession of any part of the site of Arunachala Muppan but asserted that the priest had gone beyond that site and trespassed on their site and that they had retaken possession of their own land only.

17. Under the circumstances it was necessary to inquire who was in possession before an order could be passed respecting the rights of parties in possession or for the attachment of the property when the possession was doubtful, and if the possession of the priest were established and the Magistrate was satisfied that continuance with the building would probably occasion a riot which he could not otherwise prevent, it would be competent to him to give orders to the priest to abstain from proceeding with the erection.

18. The order of the District Magistrate, dated 3rd May 1884, is set aside and the present District Magistrate is directed to pass fresh orders after completing the inquiry in the manner indicated.


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