1. The petitioner and the second counter petitioner,--counter petitioner 1 is the mother of the counter petitioner 2,--each claimed exclusive possession of the land in dispute. The learned Magistrate before whom proceedings under Section 145, Criminal Procedure Code were initiated reached the conclusion that neither side was in exclusive possession on the date of the preliminary order (18th January, 1947), and that the evidence on record did not establish conclusively that either side had been dispossessed within two months before the order. The learned Magistrate ordered the attachment of the property under Section 146(1), Criminal Procedure Code. The petitioner seeks to have that order set aside in revision.
2. The learned Magistrate was certainly entitled to rely upon the oral evidence of the village Headman C.W. 6.
He (C.W. 6) says that each cultivated half, petitioner and counter-petitioner 2. I do not for a moment disbelieve the evidence of this witness who is very straightforward.
Considering that it was a six month crop that was raised when C.W. 6 harvested it the learned Magistrate was certainly right in his observation,
with regard to recent possession, it cannot be definitely said who was in exclusive possession.
3. I am unable to see any real substance in the contention put forward by the learned advocate for the petitioner, that on the evidence on record the learned Magistrate should have come to the conclusion that the petitioner was in exclusive possession of the land. To reiterate, the learned Magistrate was entitled to rely upon the oral testomony of C.W. 6. There was nothing in the documentary evidence to indicate with any finality that, if the second counter petitioner got any possession at all it must have been within two months before the date of the preliminary order.
4. The learned advocate for the petitioner relied on Mohammad Koolayappa Rowthan v. Sheik Abdul Khadar Rowthan : (1914)27MLJ169 which was followed in Errappa Reddiar v. Guruswami Reddiar and Ors. 1935 M.W.N. 367 and contended that once the learned Magistrate came to the conclusion that both the petitioner and the counter petitioner were in possession of the land in dispute on the date of the preliminary order, the learned Magistrate had no jurisdiction at all to order an attachment under Section 146(1), Criminal Procedure Code. In Mohammad Koolayappa Rowthan v. Sheik Abdul Khadar Rowthan : (1914)27MLJ169 while setting out the facts of the case, Seshagiri Aiyar, J., observed,
The petitioner complained... that the counter-petitioner was preparing to commit a breach of the peace by forcibly entering upon properties which were in his exclusive possession. The defence was that the properties in dispute were the joint properties of the petitioner and the counter-petitioner and ' that they are in their joint enjoyment.' The Magistrate... came to the conclusion that the allegation of the counter-petitioner as regards item 3 was true.
The facts of this case are totally different. Each side claimed exclusive possession, and what the learned Magistrate found was that some time before the date of the preliminary order, more than two months prior to the date of the preliminary order, counter petitioner 2 managed to get into possession of a portion of the land in dispute. I am unable to see any authority in Mohammad Koolayappa Rowthan v. Sheik Abdul Khadar Rowthan : (1914)27MLJ169 for the extreme position contended for by the learned advocate for the petitioner, that once a conclusion is reached that both the parties were in possession of portions of land in dispute on the date of the preliminary order, no matter how recent was that possession of one or the other, the Court loses all jurisdiction vested in it under Section 146(1), Criminal Procedure Code.
5. I see no justification for any interference in revision. The petition is dismissed.