ABDULLA MUSALIAR Vs. KUNHIPAKKI ALIAS SIDDIQUE AMI ALI

JUDGEMENT

(1.) I feel no doubt that the dispute in this case is really as regards the possession of the mosque and its properties and does not relate to the right of worship in the mosque. As such, S.145 Cr. P.C. is the proper section to be invoked. The first respondent has clearly stated that he does not claim any order regarding the right of any party to worship in the mosque.

(2.) Learned counsel raised a contention that after it was sent back from this Court for fresh hearing, the Executive Magistrate had to issue a fresh preliminary order and that further proceeding without a fresh preliminary order is illegal. I do not agree. When once a valid preliminary order under S.145(1) has been passed, the Magistrate has to pass a final order under S.145(6) or cancel the order on being satisfied that no dispute exists. Here it is not the case of the petitioner that there is no likelihood of a breach of the peace or that the dispute does not exist. So the Magistrate was perfectly justified in proceeding with the enquiry. Even otherwise I fail to see what prejudice it has caused to the petitioners.

(3.) Learned Magistrate has on the affidavits and documents come to the conclusion that the respondent A - party No. 1 is in possession, and this court, as a court of revision, will not interfere with the decision of the Executive Magistrate on the factum of possession, so long as there is evidence in support of the finding and the Magistrate has scrupulously followed the procedure laid down by the section. The foundation of the jurisdiction of the Executive Magistrate is apprehension of the breach of the peace and with that object he makes certain temporary orders irrespective of the rights of the parties which will have to be agitated and disposed of finally by the civil court.