ABDUL AZEEZ Vs. PAPPU

JUDGEMENT

(1.) A Party in M.C. No. 19 of 1985 on the file of the Sub Divisional Magistrate, Perinthalmanna, are the petitioners in this petition filed under S.482 of the Code of Criminal Procedure, in short the Code. M. C. No. 19 of 1985 is a proceeding initiated under S.145(1) of the Code on the allegation that there exists a dispute between the A party and the B party concerning possession of properties measuring about 7 acres and 33 cents comprised in Sy. No. 1/A6 in Purathoor Village. The learned Sub Divisional Magistrate by his order dated 29-7-1985, passed under S.146(1) of the Code, attached the property and handed it over to the Village Officer, Purathoor, to be in management of the property. This petition is filed to quash the above proceedings.

(2.) The property measuring 7 acres and 33 cents comprised in Sy. No./lA6 of Purathoor Village was purchased in the name of Francis Manjooran as per sale deed No. 18/59. He had entrusted the property with the 1st respondent Pappu Manjooran for managing the same. Francis Manjooran bad executed a power of attorney in favour of the 1st respondent in 1967. It is alleged that the said power of attorney was cancelled in the year 1977. It appears that on 26-12-1979, ignoring the cancellation of the power of attorney, Pappu Manjooran sold the property to one Joe Thomas. Joe Thomas, it is said, is Pappu Manjooran's mother inlaw's brother's son. After the said sale, Pappu Manjooran got a power of attorney from Joe Thomas for managing the property. While so, the 1st respondent as plaintiff filed O.S. No. 126 of 1982 on the file of the Munsiff's Court, Tirur, for a permanent prohibitory injunction restraining Francis Manjooran and his men from entering into the property. Francis Manjooran is the second defendant and the second petitioner herein is the first defendant in that suit. Along with the suit the 1st respondent filed I.A. No. 1597 of 1982 for an order of temporary injunction under O.39 R.1 of the Code of Civil Procedure, restraining the defendants from entering into the plaint schedule property, 7 acres and 33 cents. After considering the evidence let in by the parties, the Trial Court dismissed that application by its order dated 19-1-1983. The 1st respondent took up the matter in appeal in C.M. Appeal No. 3 of 1983 before the Subordinate Judge's Court, Tirur. The learned Subordinate Judge, after considering the entire evidence in the case, by his judgment dated 14-6-1983 dismissed the appeal. The 1st respondent has preferred C R.P. No. 2572 of 1983 against the said decision of the learned Subordinate Judge and the C.R P. is pending in this Court. While so, the 1st respondent moved the Police and the Police sent up a report to the Sub Divisional Magistrate, Perinthalmanna, stating that there is a likelihood of serious breach of peace concerning the possession of the property in Sy. No. 1/A6 measuring about 7 acres and 33 cents in Purathoor Village. On the basis of this report, the learned Sub Divisional Magistrate has passed the impugned order under S.146(1) of the Code. It is for quashing this order this Criminal M.C. has been filed.

(3.) The main argument advanced by the learned counsel appearing for the petitioner is that the civil court is seized of the matter concerning 7 acres and 33 cents of property in Sy. No. 1/A6 of Purathoor Village and that learned Sub Divisional Magistrate was clearly in error in initiating proceedings under S.145 of the Code. I find much force in this contention. The 1st respondent filed O.S. No. 126 of 1982 on the file of the Munsiff's Court, Tirur, for a declaration of his possession and consequential prohibitory injunction restraining the defendants therein from interfering with his possession over the property. The second petitioner in this petition and Francis Manjooran, the person in whose name the property was purchased in 1959, are defendants 1 and 2 in the suit. Along with the suit he moved I.A. No. 1597 of 1982 for an order of temporary injunction under O.39 R.1 of the Code of Civil Procedure on the lines prayed for in the plaint. The learned Munsiff, after appreciating the evidence let in by the parties, dismissed that application. Aggrieved by that order the 1st respondent preferred C.M. Appeal No. 3 of 1983 before the Subordinate Judge's Court, Tirur. A copy of the judgment of the Subordinate Judge dismissing the C.M. Appeal is marked in this petition as Annexure-3. In Para.22 of that judgment the learned Subordinate Judge observed: