VISWANATHA SHENOY Vs. RADHABAI

JUDGEMENT

(1.) This Criminal Revision Petition one under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973, (for short 'the Code') by the member of 'B' party is directed against the order dated 4-11-83 passed by the Sub-Divisional Magistrate, Kundapur, in No. MAG. C.R.I. 3/83-84 declaring that the members of 'A' party was in possession of the disputed lands on 10-10 1981 the date of the order of the Land Tribunal and also on the date of the preliminary order of the Court dated 23-6-1983 and that the 'A' party is entitled to the possession of the said lands until evicted therefrom in due course of law.

(2.) Few facts relevant for the disposal of this revision may be stated as under: There was dispute between members of the 'A' and 'B' party in respect of Sy. No. 5/11,5/15,5/16,5/17,5/18,5/24,5/26, 5/27, 5/28 and 5/29 in all measuring 3 acres 80 cents of Mallar village. The Police Sub-Inspector of Shirva brought to the notice of the Sub-Divisional Magistrate, Kundapur through the F.I.R. dated 20-6-1983 that there existed a dispute between the members of 'A' and 'B' party over the said lands and the said dispute was likely to cause breach of the peace and violence including bloodshed and had requested the Sub-Divisional Magistrate to initiate proceedings under Section 145 of the Code. The Sub-Divisional Magistrate, having satisfied from the report of the Sub-Inspector that a dispute likely to cause breach of the peace existed concerning the lands in question, passed a preliminary order dated 23-6-1983 as contemplated under sub-Section (1) of Section 145 of the Code and directed the parties to appear before him either in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. In obedience to the direction issued by the Sub-Divisional Magistrate, both the members of 'A' and 'B' party appeared through their respective Advocates and filed their statements, affidavits and documents in support of their respective claims. Thereupon, the Sub-Divisional Magistrate, after hearing the Advocates for both the parties and also going through their statements, affidavits and other documents, passed the impugned order referred above declaring that the member of 'A' party was in possession of the disputed lands on the relevant date and further directing that 'A' party is entitled to be in possession of the said lands until evicted therefrom in due course of law. It is the correctness of this order that is sought to be assailed in this Revision Petition by the member of 'B' party.

(3.) Sri S.P. Kulkarni, the learned Advocate for the petitioner, inter alia contended that the impugned order is unsustainable in law since the Sub-Divisional Magistrate has relied on the affidavits filed by the parties along with other material to render his decision which is in effect breach of the provisions contained in sub-section (4) of Section 145 and also violative of Section 274 of the Code. In support of his contention, he relied on a decision of this Court in Ramachandra - v. - State of Karnataka, 1982 (2) KU 459.