E S JOHN Vs. P K KESAVAN NAIR

JUDGEMENT

(1.) This revision petition by No. 1 of the A party is for quashing the preliminary order passed by the Executive First Class Magistrate of Adoor in M. C. 7 of 1964 and to direct the Magistrate to initiate proceedings under S.107 Cr. P.C. against the B party.

(2.) On a report from the Sub Inspector of Police, Pathanamthitta, the Executive First Class Magistrate was satisfied that dispute likely to cause a breach of the peace existed between the A and B parties concerning the possession of the Arya Bharathi Vidya Mandiram High School buildings, equipments and premises and he made a preliminary order on 1-6-64 under S.145(1) calling upon the parties to appear before him and put in written statements of their respective claims to possession and to produce documents and affidavits in support of their case. Being a case of emergency learned Magistrate also attached the property and appointed a receiver for the conduct of the school. No. 1 of the A party claiming to be in possession of the school buildings and equipment and being recognised by the Government as the correspondent of the school presented a petition to the Court stating that proceedings under S.145 was uncalled for and may be dropped and attachment be vacated. According to him the school and the entire property concerned in the case belonged to No. 2 of the A party and for valuable consideration she had transferred her entire rights to his Grace the Archbishop of Trivandrum as per a registered sale deed No. 849 dated 2-3-1964. It is stated that till the assignment she was in actual possession and management of the school and thereafter a joint application was made and the Government has approved the change of management and recognised No. 1 of the A party as the manager of the school and ever since the transfer No. 1 of the A party has been in possession and management. According to him none of respondents (B party) are in possession and even if they have any imaginary claims they have to establish their rights in a civil court and cannot be allowed to take the law into their own hands and create trouble and if they are bent on creating mischief the proper thing for the court to have done is to initiate proceedings against them under S.107 Cr. P.C. The case of the B party was that the sale deed Ext P1 is ab initio void as prior sanction under S.6 of the Kerala Education Act has not been obtained, that No. 2 of the A party had no ownership, that she was in possession only as a trustee on behalf of the Hindu public and as she had no exclusive possession she could not have transferred any title or possession to the Archbishop.

(3.) Learned counsel for the petitioner referred me to the decision in Kameshwar Singh v. Ramdahin Tewari (AIR 1954 Patna 124), where it was held that if the Magistrate comes to the conclusion that the claim of one of the parties to the proceedings is a mere pretence and there is no bona fide dispute, proceedings under S.107 could be started against that party. The word used in the section is only dispute and in my opinion the word could have been used only in its ordinary sense of disagreement, struggle, scramble or quarrel for possession of land which is likely to lead to a breach of the peace. Whether the word dispute refers only to bona fide disputes has been considered by the Full Bench of the Calcutta High Court in Agni Kumar Das v. Mantazaddin ( AIR 1928 Cal. 610 ), where it was held that the word dispute means actual disagreement existing between the parties at the time of the proceedings under S.145. I am tempted to agree with the view taken in this case.