ANTONY Vs. MATHEW

JUDGEMENT

(1.) This revision petition is by petitioners 1 to 25 in M. C. Case 9/64 on the file of the Executive First Class Magistrate of Alleppey. The counter petitioner to the M. C. was one N. J. Mathew of Nirayathu Veedu, Alleppey Village.

(2.) A complaint was preferred by these petitioners to the Superintendent of police, Alleppey on 26-3-64 against the counter petitioner and 8 others alleging that they were in possession as varomdars of the paddy lands known as Kombanathuruthu padasekharam comprised in S. Nos. 351/1, 352/1, 355/1 etc. about 58 and odd acres, of Aroor Village and they had been declared as varomdars in O. S.294/62 of the Shertalai Munsiff's Court and the court had issued injunction restraining the counter petitioner from entering upon the property or interfering with their cultivation. It was represented that the counter petitioners were making preparations to trespass into the land and to take forcible possession thereof. Threats of violence were held out by the counter petitioners that if the petitioner did not quit the land they would be killed. It was prayed that unless timely action was taken the situation would result in a breach of the peace. The Sub Inspector of Police, Kuthiathodu after investigation, submitted a report stating that both parties were claiming possession and right to cultivate, and both parties were making preparations to start agricultural operations and if they were allowed to have their way, the situation would precipitate to a breach of the peace. On this report and on other materials placed before court, preliminary proceedings were drawn up by the learned Magistrate and the properties were attached under S.145 (4) of the Code. The Village Officer, Aroor was appointed the receiver, to be in possession. Written statements and affidavits were filed by both parties. Petitioners 1 to 12 are stated to be cultivating varom tenants, and the extent of the nilam in the possession of each of them has been stated in their affidavits. It was pointed out by them that it was the duty of the landlord to dewater the padasekharam; but that was not done by him and so the entire agricultural operations had to be carried on by them. Petitions were filed before the Land Tribunal by petitioners Nos. 2, 5, 6, 7, 8, 9, 10 and 11 and orders have been obtained in their favour declaring them to be varom tenants. During the pendency of their petitions before the Land Tribunal attempts were made by the counter petitioner to get possession of the properties. A suit, O. S.24 of 1964 was also filed by the counter petitioner before the Sub Court of Alleppey against the present petitioners and others, praying for an injunction to restrain them from entering upon the property. That suit was dismissed upholding, according to the petitioners, their rights. They claimed that they were in exclusive possession of the property on the eve of the passing of the preliminary order. Petitioners Nos. 13 to 24 stated that the land under dispute has a total extent of 58 acres and 59 cents; of this, 26 acres and 25 cents was in the possession of petitioners Nos. 1 to 12, and 32 acres and 36 cents in the possession of petitioners Nos. 13 to 24. Petitioners Nos. 13 to 24 have also filed petitions before the Land Tribunal and obtained orders in their favour.

(3.) The case of the counter petitioner is that 133.28 acres of land comprised , in S. Nos. 349/1, 359/1, 357/1 etc belonged to him jointly with his five brothers and he was the receiver in possession of those properties along with certain other items under an order issued from O. S.12/58 of the Sub Court of Alleppey. The term of his receivership expired by the disposal of the case on 26.9.1960; even then he was in management with the consent of other heirs. The land was being cultivated by him through his nominee one K. A. John in 1962. Some of these petitioners attempted to trespass upon one portion of the padasekharam; but their attempt was foiled by John obtaining an injunction against them from the court. The harvest in September, 1962 was peacefully taken by him. His possession of the properties, according to him, was confirmed in judgment dated 30.6.1962 of the Addl. Sub Court, of Alleppey in C. M. A. 45/52. O. S.294/62 from which the C. M. A. arose was not further prosecuted by John for the reason that the duration of the agreement had expired by that time. O. S.294/62 was thus dismissed and after the dismissal of the suit, the present petitioners who were respondents 2 to 34 in the C. M. A. managed to get an injunction against the present counter petitioner; but that was an order passed by the court in excess of its jurisdiction and it was accordingly quashed by this court in C. R. P. 314/63. In short, the case put forward by the counter petitioner is that ( he has been in uninterrupted possession of the land since 1958, and in 1962 he had either been in direct possession or through K.A. John and that the crops were raised by him in 1962 which was harvested by him in September the same year. The petitioners' case would rest mainly on the fact that they have been in possession as Varom tenants since 1120, and the counter petitioner when he became the receiver attempted to dispossess them and his attempts were resisted by the petitioners and the dispute was finally settled by a sharing of the crops. In the years 1959, 1960 and 1961 the crops were raised by them as varom tenants on the basis of agreement executed year after year on the same terms and conditions. The counter petitioner was in possession of the other portions of the padasekharam and not the disputed area. K. A. John was employed by the counter petitioner to carry on the fishing in the water-logged portions of the land in the years 1959-60 and 1960. When the petitioners moved the Land Tribunal for fixation of fair rent, a varacheet was taken by John and on the strength of that , O. S.294/62 was filed by him in the Shertalai Munsiff court and from the suit an injunction was obtained on 25.5.62. This injunction was dissolved on 8.1.1963. It was under the cover of the injunction order that the paddy was harvested by John and his men in September 1962. These petitioners were defendants in O. S.294/62 and after the dismissal of the injunction on 6.1.1963, they succeeded in obtaining an injunction against John; but that was finally set aside by the High Court on 9.1.1964. The petitioners have also filed various other suits (in all 17 in number) after 9.1.1964. The suits were O. S. Nos. 44 to 60 of 1964 and from all these suits ex parte injunctions were obtained by them from the Munsiff's Court of Shertalai and the injunction so obtained continued to be in force till the date of disposal of O. S.24/64 of the Sub Court of Alleppey.