DOMINIC Vs. STATE

JUDGEMENT

(1.) The 'B' party in M. C. No. 90/86, on the file of the Sub Divisional Magistrate, Palghat, is the petitioner in the above Criminal M. C. The order under challenge is one passed by the learned Magistrate under S.145 (1) of the Code of Criminal Procedure. It is alleged in the Memorandum of Crl. M. C. that the proceedings were initiated at the behest of respondents 2 and 3. According to 'B' party, the properties ia question along with other properties were acquired by the petitioner and the father of the 2nd respondent and the 3rd respondent in the name of M/s United Planters, which was a partnership firm. In the year 1979, there was an oral partition of the assets of the above said firm and thereafter a registered partition deed was executed on 9-10-1984. A schedule was set apart to the petitioner, B schedule was set apart to the 3rd respondent and C schedule was set apart to the father of the 2nd respondent in the said partition deed. According to 'B' party there are clear natural boundaries. It appears that the 2nd respondent filed O. S. No. 236/86 in the court of Subordinate Judge, Palghat, on 8-9-1986, alleging that there were clear boundaries, but some of the boundaries were obliterated by reason of rain and other natural causes. In the suit the reliefs sought for were fixation of the boundary and issue of a permanent injunction restraining the defendant from trespassing into A schedule property as fixed by the court. In the suit, the 2nd respondent herein also filed I. A. No. 1954/86 praying to issue an order of injunction restraining the defendant from altering the character of the suit property. Thereafter, the second respondent filed I.A. No. 3344/86 for issue of a commission to demarcate the boundaries in terms of the partition deed and also another petition I. A. No. 3345/86 for issue of a temporary injunction restraining the petitioner herein from trespassing into the property. In I. A, No. 3344/86, the court passed an order appointing a commission to identify and demarcate the boundaries. No order was passed on other petitions. In the meanwhile the second respondent appears to have filed a complaint before the police, presumably alleging that the 'B' party was making attempts to trespass into the property and in that event they would resist their attempt and there would be likelihood of breach of peace.

(2.) The Sub Inspector of Police, Malampuzha, filed a report in which it was mentioned that there is a dispute relating to 10 acres of rubber estate between the two parties, that it is not possible to decide who is in possession, that if 'A' party enters into this disputed property 'B' party and their people would resist and in that event there would be likelihood of breach of peace and loss of life and therefore it is necessary to initiate proceedings under S.145 to avert such a situation. On the basis of this report, the learned Magistrate passed a preliminary order under S.145(1) pointing out the report of the police to the effect that there would be likelihood of breach of peace and stating that in the circumstances he was satisfied that there is likelihood of breach of peace, and requiring both the parties to attend the court in person or by pleader on 1-12-1986, and put written statements as to the fact of actual possession of the above land which is the subject matter of this dispute.

(3.) The 'B' party has filed this Criminal M.C. challenging the above order of the learned Magistrate.