ABRAHAM Vs. CHARLEY

JUDGEMENT

(1.) The petition is filed by the B party members 1 to 4 and 6 in M. C. No. 34 of 1981 on the file of the Sub Divisional Magistrate, Palai. The fifth petitioner is the mother of the other petitioners. Respondents 2 to 5 are the A party to the proceedings. The second respondent is the father's brother's son of petitioners 2 to 4. The third respondent is the wife of the second respondent, and respondents 4 and 5 are his brothers.

(2.) The property involved in M. C. No. 34 of 1981 consists of 14 acres 23 cents of land comprised in Sy. No. 1257/1 of Poonjar Nadubhagom Village. The items originally belonged to one Joseph, grand father of petitioners 1 to 4. They were allotted to his son, Xavier, an incapacitated person. According to the petitioners, the property was being managed by one Johnson as guardian of Xavier and an uncle of petitioners 1 to 4. The petitioners claimed that they came into possession of the properties on the death of their father in 1970, the father of the petitioners got the properties on lease in 1963. After the petitioners got possession of the properties they filed S. M. No. 86 of 1978 under S.72(c) of the Kerala Land Reforms Act, and patta has been issued to the petitioners and purchase price also has been remitted. An appeal is pending against the decision of the Land Tribunal. The entire extent of the property is 15 acres 15 cents, out of which 80 cents is claimed by the guardian of the owner, and the patta is in respect of the remaining portion. The second respondent was a witness in the proceedings before the Land Tribunal and has given evidence to the effect that the petitioners and their predecessors were in possession of the property as lessees for over 22 years. There is a building in the property, where the petitioners are residing. But, on 14-7-1981, the Sub Inspector of Police, Erattupetta, initiated proceedings under S.145 of the Code of Criminal Procedure. Notice was served on the petitioners to appear on 30-7-1981. The petitioners filed a petition before the Sub Divisional Magistrate stating that the petitioners were in possession of the entire property, including the building, and that respondents 2 to 5 had no possession. A suit had been filed by the petitioners as O. S. No. 240 of 1981 in the Sub Court, Kottayam, against the second respondent for an injunction restraining him from trespassing into the property. The injunction was served on 10-7-1981. The second respondent entered appearance and filed his objection. The case stood posted to 13-8-1981. The first respondent raised only a dispute regarding 75 cents of land appurtenant to the building and also to the building. The respondents also filed their objection before the Sub Divisional Magistrate claiming only 75 cents of land and the building. According to the second respondent, the building was surrendered to him with 75 cents of land appurtenant thereto. But, it is admitted that the first petitioner is still residing in a portion of the building in the upper story. The case of the petitioner is that in the circumstances noted there was no necessity for initiating proceedings under S.145 of the Code of Criminal Procedure. The present petition is filed for setting aside the order passed by the Sub Divisional Magistrate.

(3.) It is noted that the Sub Divisional Magistrate Palai, passed a preliminary order on 14-7-1981, initiating proceedings under S.145(1) of the Code of Criminal Procedure, stating that he was satisfied from the report of the Sub Inspector of Police, Erattupetta counter signed by the Deputy Superintendent of Police, Palai, that a dispute likely to cause breach of the peace exists concerning possession of the land measuring 14 acres 23 cents in Sy. No. 1257/1 of Poonjar Nadubhagom Village and the building thereon between the A party on the one side and the B party on the other. He, therefore, directed the A party and the B party to appear before Court on 30-7-1981. On 30-7-1981 the Court passed another order directing attachment of the property. A separate order was also passed on the same date appointing the Revenue Inspector, Poonjar Firka as the Receiver of the property. It is these three orders that are challenged in these proceedings.