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Dhanakoti Achari and ors. Vs. Veeraswami Reddi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 1584 of 1965
Judge
Reported inAIR1967Mad91; 1967CriLJ213
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(4), 146(1), 146(1-A), 146(1-B) and 146(1-E); Code of Civil Procedure (CPC), 1908 - Sections 6 and 15; Madras Estate Abolition Act, 1948 - Sections 11 to 15; Civil Courts Act - Sections 10
AppellantDhanakoti Achari and ors.
RespondentVeeraswami Reddi and anr.
Cases ReferredMt. Gulabbai v. Manphool Bai
Excerpt:
.....a proceeding under section 145, criminal procedure code (act v of 1898) before the district magistrate, chingleput, he found that the evidence produced by the parties was vague and inadequate and that it was not possible for him to come to a definite conclusion and, therefore, under section 146 (1), code of criminal procedure he drew up a statement of the case and forwarded the record to the civil court of competent jurisdiction which he named as the district munsif, chingleput, to decide the question whether any and which of the parties was in possession of the petition mentioned properties on the date of the order passed earlier under section 145 (4). on revision by the b party it was contended that the district munsif, chingleput, was not the civil court of competent..........claimed to be in possession of a much larger extent than was admitted by the a party. the learned district magistrate found that the evidence produced by the parties was vague and inadequate and that it was not possible for him to come to a definite conclusion and, there fore, under s. 146(1 cri p.c., he draw up a statement of the case and forwarded the record to the civil court of competent jurisdiction which he named as the district munsif, chingleput, to decide the question whether and which of the parties was in possession of the petition-mentioned properties on the date of the order passed earlier under s. 145(4). the present revision petition has been filed by the b party against that order.(2) the first contention of mr. sundaravardan learned counsel for the petitioners, is that.....
Judgment:
(1) This revision potation has been filed by the B party in M.C. 152 of 1965, on the file of the District Magistrate (J.), Chingleput. The A party filed that petition M.C. 152 of 1965 under S. 145, Cri.P.C. before the learned Magistrate claiming to be in possession of the properties mentioned in the potion. They admitted that the B party was in possession of some portions of the properties, but alleged that the B party was in such possession only as tenants of the A parry. The B party however claimed to be in possession in their own right and further they claimed to be in possession of a much larger extent than was admitted by the A party. The learned District Magistrate found that the evidence produced by the parties was vague and inadequate and that it was not possible for him to come to a definite conclusion and, there fore, under S. 146(1 Cri P.C., he draw up a statement of the case and forwarded the record to the civil Court of competent jurisdiction which he named as the District Munsif, Chingleput, to decide the question whether and which of the parties was in possession of the petition-mentioned properties on the date of the order passed earlier under S. 145(4). The present revision petition has been filed by the B party against that order.

(2) The first contention of Mr. Sundaravardan learned counsel for the petitioners, is that the learned Magistrate need not have forwarded the case to the civil Court and could well have decide the case himself. I am how ever unable to find anything wrong in the order aspect. The second point urged by the learned counsel for the petitioners is that the District Munsif. Chingleput was not the civil Court of competent jurisdiction to whom the record could be forwarded under S. 146(1) Cri P.C. and that the Subordinate Judge, Chingleput, alone would be the civil Court of competent jurisdiction. It is admitted that the District Munsif has territorial jurisdiction over the properties in dispute. But it is urged that the value of the properties is very much in excess of Rs. 5,000 the pecuniary limits of the jurisdiction of there District Munsif to try an original suit.

(3) The relevant portion of S. 146(1). Cri P.C. is

"If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession of the subject in dispute he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject in dispute at the date of the order as explained in sub-section (4) of S. 145....."

Section 146 (1-A) and (1-B) say that the civil Court shall conclude the enquiry expeditiously, within 3 months if possible, and transmit its finding to the Magistrate, and the Magistrate shall on receipt thereof proceed to dispose of the proceeding under S. 145 in conformity with the decision of the civil Court given on a deference under this section nor shall any review or revision of any such finding be allowed".

Sub-Section (1-E) says:

"An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction".

The last mentioned provision has been enacted bearing in mind that the order of the learned District Magistrate even through if may be based on the finding of the civil Court would have concerned itself only with the question of possession on the date of the preliminary order under S. 145(4) and would not have considered the question of the title to the property, and the decision of a Court of competent jurisdiction referred to in sub-section (1-E) will be the decision on the question of title Usually, the Court of competent jurisdiction to decide the question of title will be the civil Court, but there may be special forums even to decide the question of title.

Now, in this case, if the questions of title has to be tried, the Court of competent jurisdiction will only be the Subordinate Judge, Chingleput, because the properties in dispute seem to be very much over Rs. 5,000 in value. But does it follow on that account that the words "a civil Court of competent jurisdiction mentioned in S. 146(1) mean only the Sub Court Chingleput? At first blush, since the same words "Court of competent jurisdiction are used both in S. 146(1) and S. 146(1-E), it might be urged, with some force, that the words occurring in S. 146(1) must be given the same meaning as the words which occur in sub-section (1-E), and since the latter words contemplate pecuniary jurisdiction, as well as territorial jurisdiction, the words occurring in S. 146(1) would also contemplate pecuniary as well as territorial jurisdiction. The decisions which have been cited before me, however, have held that the words "a civil Court of competent jurisdiction" mentioned is S. 146(1) mean only territorial jurisdiction and have no reference to pecuniary jurisdiction. The decisions are: Bodh Narain v. Deo Narain, , Sheonath Parsad v City Magistrate.

Varanasi and Ramdutta v Shambhunath

(FB)

(4) A number of reasons have been given by the learned Judges in these decisions and they are briefly these. The case forwarded to the civil Court of competent jurisdiction under S. 146(1) retains its character as a proceedings under the Criminal Procedure Code even before the civil Court, and when it is retransmitted by there civil Court with the finding, an order is passed thereon by the District Magistrate. The Criminal Procedure Code when talking of jurisdiction refers in the numerous sections only to territorial jurisdictions and has no need to refer to any pecuniary jurisdiction. It is not therefore unnatural that the words "a civil Court of competent jurisdiction" in S. 146(1) refer only to a civil Court having territorial jurisdiction over the properties in dispute. There are no words in S. 146(1) to denote an intention of the Legislature that the civil Court mentioned in S. 146(1) should also have pecuniary jurisdiction over the properties in dispute.

No machinery has been provided under S. 146(1) by which the Magistrate can determinate the pecuniary value of the dispute for deciding upon the Court to which he should forward the case from the point of view of the pecuniary jurisdiction of the civil Court. It may sometimes be a difficult matter for the Magistrate to value the subject-matter of the is only one of bare possession as distinguished from title, and the question of possession may, in a sense, be said to be incapable valuation and a party seeking the aid of the civil Court might even be justified in putting his own valuation. Further, the question referred to the civil Court is one whether the civil Court is not capable of giving any relief on the question of possession, but it more in the nature of an issue, for which, again, the enactment's relating to the pecuniary valuation of the civil Court may not apply. Further, the determination of the pecuniary value by the District Magistrate may entail some delay, and the whole object of the Criminal Procedure Code is to avoid delay and have an expeditious finding on the bare question of possession, leaving the question of title to be decide in the usual course later. The desire for expedition is displayed in the provision in sub-section (1-D) imparting finality to the finding of the civil Court without the usual remedy of appeal or revision or review.

(5) Apart from the fact that there is no machinery in the Criminal Procedure Code, for the determination of the pecuniary value by the District Magistrate, such a determination of the pecuniary value may necessitate recording of fresh evidence and give rise to a new proceeding of an incidental character which may be open to challenge in a superior Court. Further if the civil Court to which the reference is made has to determine the pecuniary value, the position is worse because that Court after recording evidence on the pecuniary value may have to transmit back the record to the Magistrate if it finds that it is beyond its pecuniary jurisdiction. (Vide para 9 of the decision in ).

(6) Again S. 6 of the C.P. Code enacting that a civil Court can only try a suit within its pecuniary limits does not in terms apply to the proceeding which is forwarded to the civil Court under S. 146(1), Cri.P.C.

(7) Again, a Court of competent jurisdiction mentioned in S. 146(1-E) might sometimes be a Court inferior to the Sub-Court of the District Court to which the reference will have to be forwarded under S. 146(1) on the criterion of pecuniary jurisdiction, and it is not to be readily supposed that the legislature intended the decision of the subordinate Court or the District Court to be revised by a Court of inferior jurisdiction.

(8) The decisions also point out that even the civil Court of superior jurisdiction like the Sub-Court or the District Court will have jurisdiction under Section 146 (1), Cri.P.C. and that it will be open to the Magistrate to forward the case either to the District Munsif, or to such superior Court like the Sub-Court or the District Court.

(9) The reason that if the test of pecuniary jurisdiction is applied under S. 146(1) there is the possibility of the finding of the superior Court(Sub-Court or District Court) under S. 146(1-B) being revised by a Court of inferior jurisdiction on the question of title under S. 146(1-E) does not appear to me to be sound enough. Usually, it is the civil Court, which is invested with jurisdiction to decide the question of title and the jurisdiction usually proceeds on the basis of the valuation of the properties, and, therefore, there is no much likelihood of the Court deciding the question of title being inferior to the Court recording the finding under S. 146(1-B). The decisions mentioned however contemplate a case like a Revenue Court, or say, a Settlement Officer under Ss. 11 to 15 of the Madras Estate Abolition Act. 26 of 1948. But when the legislature has chosen to invest those supposed inferior authorities with jurisdiction to decide the question of title, it may not be right to contend that those Courts are inferior to the Sub-Court and District Court and should not be allowed to revise the finding of the Sub-Court of the District Court on the bare question of possession under S. 146(1-B). But the other reasons given by the learned Judges in the above cases seem to me to be quite weighty. Further, the word used in S. 146(1) is "a" civil Court of competent jurisdiction and not "the" civil Court of competent jurisdiction. That to some extent justifies the view taken in the cases mentioned above that both the District Munsif, as well as the superior Court are Courts of competent jurisdiction under S. 146(1), Cri.P.C. Again, though there is a lot of resemblance between the words "a civil Court of competent jurisdiction" occurring in S. 146(1) and the words "a Court of competent jurisdiction" occurring in S. 146(1-E), they are not quite identical, because, for one thing, the word "civil" has been dropped in S. 146(1-E) and what is more important and substantial, is that S. 146(1-E) contemplates a decision of the Court of competent jurisdiction which is usually subject to further appeals being more far-reaching in its consequence, whereas under S. 146(1-B) only a founding, and that only on the bare question of possession, again tentative in nature, has to be recorded and from that point of view, one need not feel surprised that pecuniary jurisdiction need not be instead on for the purpose of S. 146(1), Cri.P.C.

(10) Sri Sundaravardan cited the decision in Kochadai Naidu v. Nagayasami Naidu, . There the record was transmitted to the District Munsif's Court under S. 146(1) Cri.P.C., but there was another suit pending on the question of title in the sub-court. The question was whether the reference under S. 146(1), Cri.P.C. could be transferred under S. 24, C.P. C. to be tried along with the suit by the Sub-Court. Ramachandra Iyer, J. (as he then was) held that it could be and indicated that the proceeding before the District Munsif would be a civil proceeding amenable for transfer under S. 24, C.P.C. he expressed dissent on that point from the decisions in and

. But that dissent does not in my opinion touch the question which I am considering. There is nothing in to invalidate the view that the words "a civil Court of competent jurisdiction" in S. 146(1) have reference only to territorial jurisdiction and not to pecuniary jurisdiction.

(11) The decision in Mt. Gulabbai v. Manphool Bai,

has no relevancy to the question at issue.

(12) For the reasons indicated above, I hold that the District Munsif, Chingleput, was a civil court of competent jurisdiction under S. 146(1), Cri.P.C. But having regard to the fact that the properties involved in the suit seem to be very much more in value than Rs. 5,000, it is desirable for the Sub-Court, Chingleput, to conduct the enquiry under S. 146(1), (1-A) and (1-B). As I have pointed out either the decisions recognise that the Sub-Court will also have concurrent jurisdiction with the District Munsif and I may ad that it is clear that under S. 10 of the Civil Courts Act the Sub-Court has inherent concurrent jurisdiction even in a suit below Rs. 5,000 in value and the bar under S. 15, C.P.C. that "every suit shall be instituted in the Court of the lowest grade competent top try it" which necessitates the fling of a suit in the District Munsif Court where the property is below Rs. 5,000 in value, will not apply in terms to the proceeding forwarded to the Sub-Court under S. 146(1). Cri P.C. I may also add that the learned counsel for the petitioner desires that the case may be enquired into by the Sub-Court and the learned counsel for the respondent-A party has no objection to it. Accordingly, while holding that the District Munsif, Chingleput, has jurisdiction and that the reference to him by the District Magistrate was not illegal, I modify the order by directing the record to be transmitted to the Sub-Court, Chingleput.

(13) One point has been made by the A party that the learned District Magistrate has not applied his mind to the question whether pending the reference to the civil Court, he should attach the property under S. 146(1), Cri.P.C. Liberty is given to the A party as desired to move the District Magistrate under S. 146(1), Cri.P.C. for attachment of the property and if need be for appointing a Receiver under S. 146(2). The District Magistrate will, of course, give an opportunity to the B party passing orders on any such application.

(14) Order accordingly.


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