B H GAVIAPPA Vs. KUNNIAH

JUDGEMENT

(1.) The above revision petition is filed by the members of the first party (to be hereinafter referred to as the petitioners) against the order dated 2-11-1971 passed by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore (to be hereinafter referred to as the Executive Magistrate), in JDL.8/70-71, holding the members of the second party who are respondents herein (to be hereinafter referred to as the respondents) to be entitled to possssion of the property in dispute until evicted therefrom in due course of law.

(2.) The Circle Inspector of Police, Kengeri Gate Police Station, filed a report in CR.138 of 1970 on 4-12-1970 before the Executive Magistrate for action being taken under S.145 of the CrPC., as there existed a dispute in respect of a farm house and cattle-sheds situate in the limits of Hosakerehalli village, Bangalore South Taluk and Gerehalli village, Bangalore North Taluk, commonly known as Tiwari estate, comprised in S.Nos.103/1, 103/2, 104/1, 104/2. 105, 106 and 101 of Hosakerehalli village, Bangalore South Taluk and S.Nos. 17. 18 and 19 of Gerehalli village, Uttarahalli Hobli, Bangalore North Taluk, which was likely to cause a breach the peace. The Executive Magistrate, on being satisfied, passed a preliminary order on 5-12-1970 under S.145(1) CrPC., and as a case of emergency, to prevent imminent beach of the peace, attached the immovable properties, namely, the farm house and the cattle-sheds in S.No.106 of Hosakerehalli village, and directed the Sub-Inspector of Police, Bytarayanapura to take possession and hold the attachment pending enquiry by the Court. Notices were duly served on the petitioners and the respondents. They filed their statements and affidavits. The Executive Magistrate heard them. As he could not come to a definite conclusion on the basis of records as to which of the parties was in possession of the properties namely, cattle sheds and farm house in dispute on the date of the attachment, made a reference to the Civil Court as required under S.146 (1) of the CrPC. and forwarded the same to the First Additional Second Munsiff, Bangalore, to decide the question whether any and which of the parties was in actual possession of the property in dispute. The Additional Munsiff, Bangalore, to whom the matter was referred, enquired into the matter and forwarded his findings to the Executive Magistrate. The finding of the learned Munsiff in para 113 of his order reads as under:

(3.) Mr. B.K.Ramachandrarao, learned Advocate for the petitioners, contended that the Executive Magistrate has exercised the jurisdiction in respect of the property that was not the subject matter of the proceedings before him. Secondly, he contended that in respect of the proceedings before him, the Executive Magistrate has failed to pass any order at all. Thirdly, he contended that the revision petition against the impugned order is maintainable. However, he refrained from canvassing any interference with the finding of the learned Munsiff with regard to the actual possession of the properties in dispute.