THANKAMMA PILLAI Vs. GANGADHARAN PILLAI

JUDGEMENT

(1.) This is a revision against a preliminary order under S.115, Criminal Procedure Code passed by the Executive First Class Magistrate, Trivandrum. The property in respect of which the order was passed is 25 cents comprised in Sy. No. 1916/B and C. The petitioner had filed O.S. No. 733 of 1951 of the Attingal Munsiffs Court and obtained a decree for redemption of these items along with others against the counter petitioners. These items were items 2 and 3 in that suit. The main contention raised by the counter petitioner in that suit was that items 2, 3 and 5 were not included in the plaint mortgage and hence not redeemable. It was after repelling that contention that the decree for redemption of all the items was passed. The defendant appealed against the decree. The only point that was agitated in appeal was about the non inclusion of items 2, 3 and 5 in the mortgage and after an elaborate discussion of the oral and documentary evidence the court upheld the decree of the Munsiff and held that the defendants were in possession of the plaint schedule items 1 to 5 under the mortgage and confirmed the decree for redemption. In execution of that decree all the items including the disputed items were delivered over to the revision petitioner on 28-1-1958 & the copy of that delivery list has been proved and filed as Ext. P7 in this enquiry. The Counter petitioner then filed a criminal case as C.C. No. 234 of 1958 against the petitioner and others alleging that on 20-4-1958 they trespassed into the property, destroyed the bunds and ploughed the field and when the complainant protested, kept him in wrongful restraint. The accused denied the charge and contended that they were in possession of the property in pursuance of the court delivery. The amin who effected the delivery was examined and the delivery list and other records evidencing the possession of the accused were filed. The learned Magistrate finding that the accused were in possession held that the complainant had no right to interfere with the agricultural operations carried on by the accused. He therefore, acquitted the accused. The judgment was delivered on 4-2-1959 and a copy of it is marked as Ext. D1 in this enquiry.

(2.) During the pendency of the criminal case, on 28th July 1958 the counter petitioner filed a petition before the Executive First Class Magistrate, Trivandrum alleging that subsequent to the ploughing of the land by the Revision Petitioner and others in April 1958, he cultivated the field & the revision petitioner was attempting to trespass into the property and harvest the crops forcibly and prayed that necessary steps may be taken against the counter petitioners. The petition was forwarded to the police for necessary action and report. Though the Sub Inspector of Police reported that there was dispute between the parties about the possession of the property and proceedings under S.145 had to be started for preventing the breach of the peace, the Assistant Superintendent of Police to whom the report was sent for counter signature forwarded it to the Circle Inspector to look into the matter personally and report whether the present situation demanded initiation of proceedings under S.145 of the Criminal Procedure Code. The Circle Inspector of Police reported that the situation did not warrant the initiation of proceedings under S.145 as the counter petitioner was in possession of the paddy field and had already cultivated it. It was also stated in the report that an earlier report to the same effect had been filed. Thereupon the Assistant Superintendent of Police reported to the Magistrate that even though the Sub Inspector, Kazhakkoottam has suggested action under S.145 Criminal Procedure Code, the present situation did not warrant it.

(3.) Thereafter the Magistrate issued notice to the parties to appear. The parties appeared and filed statements and produced the relevant records. The petitioner has also been examined. The judgment in A.S. No. 15 of 1958, the delivery list and the judgment in C.C. No. 234 of 1958 were marked in the case. The petitioner admitted these records but maintained that the decree in that case was for delivery of the properties excluding the particular items in question here and the delivery was also exclusive of those items. The court records clearly establish that the 25 cents in Sy. No. 1916/B and C which are items 2 and 3 therein were actually delivered over to the revision petitioner. It is also established that the criminal case of trespass into the property was thrown out by the Magistrate on the definite finding that the revision petitioner was in possession. It was in the face of these facts as well as the report of two responsible police officers that the revision petitioner had actually raised crops on the land and there was no apprehension of a breach of the peace and as such action under S.145, Criminal Procedure Code was not called for, that the learned Magistrate found his way to proceed under S.145 and order attachment of the properties pending the enquiry.