RAJAYYAN Vs. UMMINI NADAR

JUDGEMENT

(1.) These revision petitions are filed by the 'B' and 'G' Party respectively in M. C. No. 66 of 1980 on the file of the Sub Divisional Magistrate, Trivandrum.

(2.) On 29-5-1980 the Sub Inspector of Police, Parassala submitted a report to the Sub Divisional Magistrate, Trivandrum on the basis of a petition submitted before him alleging criminal trespass, mischief and other acts by one of the parties to the proceeding. The S. I. of Police found that the property is in the joint ownership of the parties to the proceeding. He further found that during the pendency of the final decree proceedings in O. S. No. 124 of 1970 on the file of the Munsiff's Court, Neyyattinkara, the parties were scrambling for actual possession of different portions of the property measuring in all 1.12 1/2 acres of land. He reported that because of the clash of interests, the readiness of the parties to use force and also of the fact that the parties belong to rival communities, there was a likelihood of breach of peace. On 8 7 1980, the Sub Divisional Magistrate, Trivandrum passed an order under S.145(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code'). On the same day he passed another order keeping the property under attachment under S.146 of the Code and appointing the Village Officer, Parassala as the receiver with respect to the property. The 'G' Party, who purchased 7 cents of land from the 'C' party, put up a structure and was conducting a tea shop in that structure, moved the Sub Divisional Magistrate for granting him permission to continue in occupation of the structure. Permission was originally granted by the Magistrate. Subsequently when it was brought to the notice of the Magistrate that the civil court had passed orders directing maintenance of the status quo by the parties (though 'G' party was not a party to the civil suit) and that this structure was put up by the 'G' Party after the order of the civil court, the learned Magistrate passed another order directing the receiver to evict the 'G' party from this structure. The validity of the order passed under S.145 of the Code and the validity of the order directing eviction of the 'G' party are being challenged in these proceedings.

(3.) The learned counsel for the revision petitioners, Sri. Siby Mathew, urged three main contentions before me, viz., (i) that the order passed by the Magistrate under S.145(1) of the Code is invalid since the grounds of satisfaction and the factum of satisfaction have not been mentioned therein; (ii) that the case on hand is not a case of disputed possession, but a case of admitted joint possession and therefore the Magistrate had no jurisdiction to initiate action under S.145(1) of the Code, and (iii) that the Magistrate travelled beyond his jurisdiction in directing the receiver to evict the 'G' Party from the structure. All these contentions are rebutted by the respondents.