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Sami thevar and ors. Vs. Sadaya thevar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1971)2MLJ17
AppellantSami thevar and ors.
RespondentSadaya thevar
Cases ReferredState of Andhra Pradesh v. Kokkiligada and Anr.
Excerpt:
- .....two months thereafter. meantime, he presented a petition under section 145, criminal procedure code, on 2nd november, 1968. this petition was returned for some rectification. it was resubmitted only on 3rd january, 1969. the police report was given on 19th february, 1969. the preliminary order under section 145 (1), criminal procedure code, was passed on 25th november, 1969. the final order was passed on 9th july, 1970. thus, it will be seen that even as admitted by the respondent, there was trespass on 22nd september, 1968. the preliminary order was on 25th november, 1969. therefore, he had no possession within two months prior to this order. further, there is no reference to the delivery of possession in the first agreement for sale viz., exhibit p-1, entered into with domnick, the.....
Judgment:
ORDER

1. The Sub-Divisional Magistrate, Usilampatti, in M.C. No. 13 of 1970 on his file, a proceeding Under Section 145 of the Criminal Procedure Code, has restrained the petitioners from in any way interfering with the respondent's possession and enjoyment of a land which measures about no acres situate on the northern side of S. No. 1232 in the village of Mekamalai in Madurai district. This revision is directed against this order.

2. Sadaya Thevar, the respondent herein, had filed a petition before the Executive First-Class Magistrate, Periakulam, on 2nd November, 1968, averring therein that on 22nd September, 1968, the petitioners unlawfully trespassed into the aforesaid land, committed rioting and caused hurt to him and others. He requested for orders Under Section 145, Criminal Procedure Code. The Sub-Inspector of Police reported on 19th February, 1969, that there was a dispute about this land and that breach of the peace was imminent. Preliminary order Under Section 145 (1) of the Code was issued on 25th November, 1969. The petitioners appeared and filed their counter, stating that the properties were in their possession and enjoyment. The Executive First-Class Magistrate transmitted the matter to the Sub-Divisional Magistrate for enquiry. Documents and affidavits were filed by both the sides. Finally on 9th July, 1970 the learned Magistrate declared possession with the respondent No. 3. The extent involved in this dispute is about no acres. This is situated on the northern side of S. No. 1232 in the village of Mekamalai. The respondent claims to have purchased the land from one Domnick. This Domnick had purchased these lands under four sale deeds viz., Exhibits P-5, P-6, P-7 and P-8 in year 1956. These documents cover only about 36 acres and the case of Domnick is that he was in enjoyment of the remaining extent -- Poramboke after having encroached into it. There is no sale deed in favour of the respondent. But, there is an agreement for sale. It is Exhibit P-2 which is dated 27th July, 1968. This is in favour of the respondent and another Machakalai. The respondent states that he is in possession of these lands ever since the date of this agreement viz., 27th July, 1968. He had filed a complaint in Court stating that the petitioners unlawfully trespassed into his lands on 22nd September, 1968 and committed rioting. This complaint which was tried in C.C. No. 471 of 1968 by the Sub-Divisional Magistrate, ended in an acquittal on 20th January, 1969. Exhibit D-1 is the copy of the judgment in this case. Charges Under Sections 147, 148, 447 and 324, Indian Penal Code, were framed against the petitioners. The learned Magistrate has held in this case that the prosecution had not proved the possession set up by the respondent. The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial, will be that this verdict will be binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata veritate occipitur' is no less applicable to criminal than to civil proceedings --vide Pritam Singh and Anr. v. State of Punjab : 1956CriLJ805 . There in that case the charge of possession of a revolver was found against the prosecution in a particular case. In a later case for murder, it was held that this question of possession of the revolver could not be proved against the accused in the subsequent proceedings. Thus, where an issue has been tried and a finding has been reached in favour of the accused in a prior proceeding, such a finding would constitute an estoppel or res judicata against the prosecution and it prevents a re-litigation on the issue. This is the position if it arises out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial. This is what is exactly prohibited--vide State of Andhra Pradesh v. Kokkiligada and Anr. : AIR1970SC771 .

3. Thus we see that the case of the respondent in this case was that there was a trespass by the petitioners on 22nd September, 1968. The complaint was filed in Court two months thereafter. Meantime, he presented a petition Under Section 145, Criminal Procedure Code, on 2nd November, 1968. This petition was returned for some rectification. It was resubmitted only on 3rd January, 1969. The police report was given on 19th February, 1969. The preliminary order Under Section 145 (1), Criminal Procedure Code, was passed on 25th November, 1969. The final order was passed on 9th July, 1970. Thus, it will be seen that even as admitted by the respondent, there was trespass on 22nd September, 1968. The preliminary order was on 25th November, 1969. Therefore, he had no possession within two months prior to this order. Further, there is no reference to the delivery of possession in the first agreement for sale viz., Exhibit P-1, entered into with Domnick, the alleged owner. Domnick, in Exhibit P-2, the second agreement dated nth June, 1969, has stated that he was delivering possession of these lands only on that date.

4. Thus, the respondent has not established his possession of the property in dispute. The sale deeds in favour of Domnick do not cover the entire extent. Major portion of the land is poramboke and it is claimed by way of encroachment. There is only an agreement of sale in favour of the respondent. The order of the learned Magistrate declaring possession in the respondent is not correct and the same is set aside. There will be an order declaring that the petitioners are in possession and forbidding the respondent from in any way interfering with their possession. The revision petition is allowed. The remarks of the respondent would be to seek redress in the lower Court.


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