SANKARA PILLAI Vs. STATE

JUDGEMENT

(1.) Against the preliminary order passed by the Executive 1st Class Magistrate, Alleppey under S.145 of the Code of Criminal Procedure the claimant has come up in revision. The property involved in the proceedings is 3 acres and 10 cents of paddy land comprised in Sy. Nos. 200/1, 219/1 and 221/1 of Punnapra village, Alleppey which forms part of a 'Patasekharam', the total extent of which is 52 acres. This property was outstanding on a mortgage and was sold in court auction in execution of the decree obtained on the mortgage and purchased by one Ramachandran Pillai, who is respondent No. 3 to this petition. The revision petitioner is the power of attorney holder of Ramachandran Pillai. On the strength of the sale certificate the property was duly taken delivery of by the revision petitioner on behalf of Ramachandran Pillai on 19 2 1970 and ever since he has been in actual possession of it Before that one Hakeem and another Hameed claiming themselves to be mortgagees in actual possession of this property had filed a suit (O. S.546 of 1966) along with one Narayanan, who had taken an assignment from the mortgagor pendente lite, for injunction against revision petitioner. That suit ended in dismissal. Subsequent to that and after the present revision petitioner had taken delivery through court the second respondent, Usmankutty, claiming himself to be an oral assignee from Narayanan threatened to trespass upon the property and to prevent that the revision petitioner filed O. S.408/1970 in the Munsiff's Court of Alleppey for a permanent injunction against the 2nd respondent and in that suit I. A. No. 10937/1970 was moved for a temporary injunction. That petition was contested by the 2nd respondent and the learned Munsiff on enquiry found that the present petitioner had actually obtained delivery through court and is in possession and allowed the prayer for interim injunction. In the order however an inadvertent mistake had crept in regarding the survey number of the property. To set right that, C.M.A.1/1971 had to be filed by the revision petitioner in the District Court of Alleppey and there also all the aspects of the matter were considered and the prayer was allowed. The C.M.A. was disposed of on the 2nd of January 1971. The petitioner has been continuing in possession even after that. The first respondent in the meantime by influencing the police got a report filed by them to the effect that there is dispute of possession between the 2nd respondent on the one hand and respondents 3 to 5 on the other, which is likely to end in a breach of peace. It is on this report that the Executive 1st Class Magistrate initiated proceeding under S.145 and passed the present preliminary order. The Sub Inspector of Police on the basis of the preliminary order has turned out the petitioner's workers from the property and banded over possession to the Village Officer. These steps were taken without notice to respondents 3 to 5. The 3rd respondent was in fact at Trivandrum at the time. According to revision petitioner, there is no dispute of possession at all and that possession all along has been with the revision petitioner as mukthiar holder for the 3rd respondent and such possession has been upheld also by the civil court. Stating these facts the petitioner preferred a claim petition before the learned Magistrate, which having been dismissed, he has come up in revision.

(2.) On a review of the position in the light of the evidence and circumstances of this case, I am unhesitatingly of the view that the learned Executive 1st Class Magistrate has misdirected himself in initiating the present proceedings. It has well been brought out in the evidence that the property was taken delivery of through court by the present petitioner on behalf of the 3rd respondent and he has been in possession thereafter. When the present 2nd respondent threatened to disturb that possession, the petitioner instituted O.S. 408/70 for a perpetual injunction against him and obtained an interim order restraining him from interfering with the petitioner's possession. In the face of these proceedings of the Civil Court the Executive 1st Class Magistrate ought have abstained from interfering in the matter by starting proceedings under S.145.

(3.) In the present case also as is evident from the materials made available that the property was recently taken delivery of through court and it is in the possession of the present petitioner in pursuance of that. The duty of the Criminal Court therefore is to protect that possession and if that possession is disturbed, the proper Section under which proceedings are to be initiated is S.107 of the Criminal Procedure Code. Learned Executive 1st Class Magistrate has, as already stated, misdirected himself as is evident from the following observation appearing in his order. He would observe: