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P. Swaminatha Pillai Vs. S. Raghavachariar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1947Mad161; (1946)2MLJ433
AppellantP. Swaminatha Pillai
RespondentS. Raghavachariar and ors.
Excerpt:
- - it cannot be said that the magistrate had no materials before him to be satisfied that there is likely to be a breach of the peace and action would have to be taken......kumbakonam, in proceedings under section 145, criminal procedure code, declaring that the counter-petitioners (the b party) were in possession of the disputed lands and that the petitioner (the a party) was not in possession thereof, and directing the lands to be put in possession of the b party.2. these lands are nanja lands in tirupallathurai village. they are said to belong to one aravamudha ayyangar of hyderabad. the first counter-petitioner is his agent. the petitioner claims to have been in possession of these lands till april, 1945, as his tenant. this is not disputed. on 7th may, 1945, a notice was given by the first counter-petitioner, the agent of the owner, to the petitioner asking him to vacate, alleging that he was in arrears of rent. to that notice a reply was sent.....
Judgment:
ORDER

Kuppuswami Ayyar, J.

1. This is a petition to revise the order of the Additional First Class Magistrate, Kumbakonam, in proceedings under Section 145, Criminal Procedure Code, declaring that the counter-petitioners (the B party) were in possession of the disputed lands and that the petitioner (the A party) was not in possession thereof, and directing the lands to be put in possession of the B party.

2. These lands are nanja lands in Tirupallathurai village. They are said to belong to one Aravamudha Ayyangar of Hyderabad. The first counter-petitioner is his agent. The petitioner claims to have been in possession of these lands till April, 1945, as his tenant. This is not disputed. On 7th May, 1945, a notice was given by the first counter-petitioner, the agent of the owner, to the petitioner asking him to vacate, alleging that he was in arrears of rent. To that notice a reply was sent by the petitioner on 19th May, 1945, denying that he was in arrears and claiming occupancy rights in the lands. On 24th May, 1945, the first counter-petitioner, the agent, leased the lands to the counter-petitioners 3 and 4 and they are said to have ploughed the lands and raised seedlings thereon. The petitioner then made a complaint to the police on 15th June, 1945, that the counter-petitioners 3 and 4 had interfered with his possession and were creating trouble. The Sub-Inspector inspected the locality and found the counter-petitioners sloughing and he asked counter-petitioners 3 and 4 not to interfere with the lands and plough them. Thereupon a petition under Section 144, Criminal Procedure Code, was filed before the Sub-Magistrate by the first counter-petitioner who had leased the lands to counter-petitioners 3 and 4, and the Magistrate passed a preliminary order on 28th June, 1945. On 5th July, 1945, the petitioner appealed against that order to the Sub-Divisional Magistrate and for that order being rescinded. On 14th July, 1945, that order under Section 144(1) was rescinded, and on that very day proceedings were started under Section 145 by the Sub-Divisional Magistrate. The properties in dispute were attached, a Receiver was appointed and the properties were put in possession of the Receiver. The enquiry under Section 145 went on and the Magistrate came to the conclusion that the counter-petitioners before him; (the B party) were in possession of the properties on 14th July, 1945, and directed the properties to be put in their possession.

3. Two points are urged before me in revision. The first is that the order under Section 144, Criminal Procedure Code, which was rescinded and proceedings under Section 145, Criminal Procedure Code, were started did not contain any statement that there was a dispute about the properties which is likely to cause a breach of the peace; and the other is that the lower Court had no jurisdiction to appoint a Receiver and direct possession of the properties to him.

4. As to the first point, it is true that the preliminary order does not specifically mention that a breach of the peace was likely to be caused but then, the Magistrate had started these proceedings under Section 145, Criminal Procedure Code, on the very day he rescinded the order under Section 144. The Magistrate was in possession of all the material facts to indicate that there was a dispute about possession and a breach of the peace was apprehended. It is also significant that even in the petition filed by the petitioner before him it was stated that there was likely to be a breach of the peace as he was threatened with dispossession with resort to force. It cannot be said that the Magistrate had no materials before him to be satisfied that there is likely to be a breach of the peace and action would have to be taken. The petitioner before me was aware of those facts. Further he did not take any steps till now to have the proceedings started under Section 145, Criminal Procedure Code, quashed.

5. This is no doubt an irregularity in the procedure; but I do not think it is fatal because there were materials before the Magistrate, materials furnished by the petitioner himself, to indicate that a breach of the peace was likely. Omission to make mention of those materials in the order itself is not fatal to the proceedings. I do not think this is a ground for interfering in revision.

6. With regard to the second point urged regarding the appointment of a Receiver and directing delivery of possession of the properties to him, I do not think it is necessary to consider this point now that the Receiver has ceased to be a Receiver and no useful purpose will be served by considering the point whether he has been properly in possession of the properties or not.

7. The petition accordingly fails and is dismissed with costs.


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