THOMAS JOSEPH Vs. ANTONY JOHN

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Kottyarn in a revision before him concerning a proceeding initiated under Section 145, Criminal Procedure Code, by the Division First Class Magistrate of Kottayam in M. C. 3 of 1951. On the day previous to the date tile counter-petitioners thereto had to file their written statements. The learned Magistrate passed the following order: The subject of dispute in this case is 14 cents of land in Thoppil Purayidom in Madappally Kara of Madappally Pakuthy. There was a clash between the 1st petitioner and the counter-petitioners on this land on the 13th April 1950 in which people on either side sustained injuries. On that incident two cases, each counter to the other were charge-sheeted by the police before this Court (C. C. 237 and 240 of 1950 ). While these cases were pending trial the V police reported action under Section 143, Cri. P. C. in respect of the land so as to avoid further clash between the parties. Accordingly the preliminary order in this case was issued on 27-1-1951 and the property was attached and taken possession of by the receiver in the presence of both parties on 30-1-1951. The petitioners have filed their written statement already and the case stands for the written statement of the counter-petitioners. The 2nd petitioner was examined as P. W. 8 in C. C. 240/50. C. C. Nos. 237 and 240 have since been disposed of: Evidence regarding possession was let in by the parties in both the cases. The petitioner's case is that the disputed land forms part of S. No. 841/6 obtained in a court delivery, while the counter-petitioner's case is that it is S. No. 841/7 H. 13 obtained by a sale deed in his favour. It is admitted by both parties that the petitioners are in possession of S. No. 841/6 and the counter-petitioners in possession of S. No. 841/7 H. 13 and that there is no dispute between the parties on this point. It has been found in the above cases that it is not possible to decide as to whether the disputed plot lies in S. No. 841/6 or 841/7 and therefore not possible to decide as to which of the two parties was in possession of the disputed plot on the date of the disturbance unless the boundaries of the survey fields are refixed on the ground under the provisions of the Survey and Boundaries Act. As the question has thus been decided it is unnecessary to proceed further with this case. The parties are accordingly directed to take steps to fix the limits of their holdings on the ground. When this is done any portion of the disputed land which comes within S. No. 841/6 will be handed over to the 1st petitioner and any portion which comes within S. No. 841/7 H 13 will be handed over to the counter petitioner. Till then the disputed plot will continue under attachment.

(2.) FEELING aggrieved by this order the petitioner before the learned Magistrate moved a petition requesting the Magistrate to proceed with the enquiry after accepting the written statements from the counter-petitioners. But this petition was dismissed. The learned Magistrate observed that final orders have already been passed in the case on 23-1951 (referring to the order quoted above) and that he was therefore incompetent to re-open the matter. This was on 15-3-1952. It was after this that the petitioner moved the Sessions Court to revise the two -orders passed by the learned Magistrate (the order dated 2-3-1951 and the order dated 15-3-1952 ). While admitting the revision the learned Sessions Judge issued notice to the counter-petitioners as also to the Public Prosecutor. After due hearing of all the interested parties and the Public Prosecutor the learned Sessions Judge passed the order under reference on 20-51952. The opening paragraph of the order re-capitulates the circumstances which led to the revision petition. The second and the third paragraphs read as follows:

(3.) WHEN this reference came up before us we directed notice to me parties as also to the State. At the hearing the petitioner was not represented before us. Mr. N. K. (sic)Job, who appeared for the counter-petitioners and Mr. N. Kumarun Achan who represented the State, supported the order passed by the Division First Class Magistrate. In other words, in their view, the opinion expressed by the learned Sessions Judge in his order of reference was wrong. We regret we cannot accede to their contention.