A NARAYANAN KUTTY MENON Vs. ELAYAT SEKHARA MENON

JUDGEMENT

(1.) This revision petition arises out of the final order passed by the Executive First Class Magistrate, Palghat under Sub-s.(6) of S.145 Cr. P. C. On being satisfied that a dispute likely to cause a breach of the peace exists concerning the possession of the property in dispute, the learned Magistrate passed a preliminary order requiring the parties to put in their written, statements of their respective claims as respects the fact of actual possession of the subject matter of dispute and requiring them to put in such documents and affidavits on which they proposed to rely in respect of their claims. Both parties filed written statements, affidavits and documents and after hearing the counsel for the parties the learned Magistrate passed the impugned order.

(2.) It is contended by the learned counsel for the petitioners B party that the affidavits filed by them have not been considered, that only documents of title have been referred to in the order, and secondly the Magistrate has confused between "right to possess" and "actual physical possession". On the other hand learned counsel for the respondents -- 'A' party submitted that there is substantial compliance with the provisions of S.145(4) Cr. P. C., that there was enough material for the learned Magistrate to have come to the conclusion that the A Party is in actual possession and normally there should be no interference with an order passed by the Magistrate under S.145 Cr. P. C. which prescribes a summary procedure for deciding the factum of actual possession to prevent a breach of peace and that the defeated party has always the remedy by way of a suit in the civil court.

(3.) Sub-s.4 of S.145 Cr. P. C. after amendment by Act 26 of 1955 so far as material provides: