PADMANABHAN Vs. NANU

JUDGEMENT

(1.) The final order passed by the Sub-Divisional Magistrate at Quilon in summary Case No. 5 of 1123 on the file of his Court, has given rise to this revision petition. The property involved in that case consists of 2 acres and 96 cents of garden land comprised in Sy. Nos. 8320 and 8321 in Munraoe Island Pakuthy. Regarding the possession of this property there was dispute between the petitioner in Summary Case No. 5/23 on the one side and counter petitioners 1 to 8 on the other. The petitioner who claimed to be in possession of the property filed a petition before the Sub-Divisional Magistrate on 8.12.1121 complaining of disturbance caused to his possession and enjoyment of the property by the counter petitioners. After getting a report from the police on the allegations contained in that petition and on being satisfied that there was dispute between the petitioner and the counter petitioners about the possession of the property and that such dispute was likely to cause a breach of the peace, the Magistrate started proceedings under S. 145 of the Criminal Procedure Code, by passing a preliminary order on 11.1.1123 under sub-s. 1 of that section. The property was also attached and placed in the possession of a receiver appointed by the Court. After considering the statements filed by the opposing parties and the evidence tendered by them, the Magistrate passed the final order on 28.8.1954 under sub-s. 6 of S. 145 declaring possession in favour of the petitioner and forbidding all disturbance of such possession except in accordance with the decision of a competent civil court. Counter petitioners 1 and 5 have filed the present petition seeking a revision of that order.

(2.) The point raised by the revision petitioners is that the Magistrate has acted in excess of his jurisdiction in declaring possession in favour of the respondent after ignoring the possession which the revision petitioners had perfected long prior to the period of two months specified in the first Proviso to sub-s. 4 of S. 145. It is point out that the learned Magistrate was definitely of the view that the material date on which the respondent had to prove his possession is the date on which he filed the petition before the Sub-Divisional Magistrate complaining about the disturbance of his possession by the revision petitioners and that if he succeeds in proving that he had possession on that date he is entitled to a protection order under sub-s. 6 of S. 145, even if he had been out of possession for a period of more than two months prior to the date of the preliminary order under sub-s. 1. That the Magistrate was of that view, is clearly borne out by the following observations made by him in the course of the impugned order:

(3.) The point raised in this revision petition has to be considered in the light of the provisions contained in sub-ss. 1 and 4 of S. 145 of the Criminal Procedure Code. Sub-s.1 states the circumstances under which a competent Magistrate can start proceedings under that section by passing a preliminary order. That sub-section runs as follows:-