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Sinanan Shukulathi Rowther and ors. Vs. Gulam Moideen Rowther Alias Karuppatli Allapichai Rowther - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad24; 71Ind.Cas.508
AppellantSinanan Shukulathi Rowther and ors.
RespondentGulam Moideen Rowther Alias Karuppatli Allapichai Rowther
Cases Referred and Kamal Kutty v. Udayavarma
Excerpt:
criminal procedure code (act v of 1898), section 145 - preliminary order--no finding as to-possession--revision. - - the contention seems to be well-founded, and i find that the magistrate does not even attempt to deal with the question of possession and that he makes some very general observations in regard to the ownership of the property......the house in question at a court-auction and obtained delivery on the 1st march 1918. the counter-petitioners caused disturbance whereupon various proceedings were taken from time to time. finally, the keys of the house were handed over to the sub-inspector of police on the 14th november 1918. the petitioner made several applications for possession of the keys on the ground that they, had been taken from him by the sub-inspector; but on the 15th february 1921 an order was made by the sub-divisional magistrate directing the return of the keys to the counter-petitioners. within twenty days of this order the petitioner moved the same magistrate to take action under section 145. it is contended that, in the order passed by the magistrate, there is no finding regarding the possession.....
Judgment:
ORDER

Venkatasubba Rao, J.

1. The petitioner purchased: the house in question at a Court-auction and obtained delivery on the 1st March 1918. The counter-petitioners caused disturbance whereupon various proceedings were taken from time to time. Finally, the keys of the house were handed over to the Sub-Inspector of Police on the 14th November 1918. The petitioner made several applications for possession of the keys on the ground that they, had been taken from him by the Sub-Inspector; but on the 15th February 1921 an order was made by the Sub-Divisional Magistrate directing the return of the keys to the counter-petitioners. Within twenty days of this order the petitioner moved the same Magistrate to take action under Section 145. It is contended that, in the order passed by the Magistrate, there is no finding regarding the possession of the property in question. The contention seems to be well-founded, and I find that the Magistrate does not even attempt to deal with the question of possession and that he makes some very general observations in regard to the ownership of the property. He concludes the order with the statement:

I declare the petitioner to be in possession of the house and direct the counter-petitioners not to interfere with it till eviction in due course of law.

2. Sub-Section 4 provides that the Magistrate shall, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, if possible, decide whether any and which of the parties was, at the date of the preliminary order, in possession of the property; and under sub-Section 6 the Magistrate is required to issue an order declaring such party to be entitled to possession.

3. The Magistrate in this case does not record a decision under sub-Section 4; nor does he issue an order containing a declaration contemplated by sub-Section 6. The Magistrate apparently thinks that the petitioner has a right to possession and passes a decree for possession. This constitutes an obvious infringement of the provisions of Sections 145 and 146.

4. The only other point that remains to be decided is, whether any question of jurisdiction is involved and whether the exercise of the revisional powers by the High Court is justified. If an order is challenged to be without jurisdiction, that is to say, if it be outside the section, the mere fact of the order purporting to be so passed will not bring it within the section so as to debar the exercise of the power of the High Court to set it aside in revision as null and void and without jurisdiction: see Sreeman Kumar a Tirumalraja Bahadur, Rajah of Karvetnagar v. Sowcar Lodd Govind Doss Krishna Boss 29 M. 561 : 16 M.L.T. 419 : 1 M.L.T. 405 : Cr.L.J. 91, Dyawappa Basgunda Patit, In re 29 Ind. Cas. 66 : 17 Bom. L.R. 382 : Juthan Singh, v. Ram Narain Singh 22 Ind. Cas. 986 18 C.W.N. 700 : 189 C.L.J. 356 : 15 Cr.L.J. 202, Manindra Chandra Nandi v. Barada Kanta Chowdhury 30 C. 112 : 3 C.W.N. 417 and Kamal Kutty v. Udayavarma, Raja of Chirakal 12 M.L.T. 439 : (1912) M.W.N. 1154 : 23 M.L.J. 499 : 13 Cr.L.J. 753.

5. The order of the Magistrate is, therefore, set aside. But in the circumstances of the case I make no order as to costs.


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