SEKHARA MENON Vs. EXECUTIVE 1ST CLASS MAGISTRATE OTTAPALAM

JUDGEMENT

(1.) The dispute which has given rise to this Original Petition and the Criminal Revision Petition is one relating to possession of the Thirumandham kunnu Bhagavathi Temple in Angadipurom desom and its properties, moveable and immoveable. The hereditary trusteeship of this temple vested in the Valia Raja of Walluvanad. Sekhara Menon who is the petitioner in the Original Petition and Criminal Revision Petition was originally a Kariasthan of the Valia Raja who died on 31-1-1958. The 1st respondent in the Criminal Revision Petition who is the 2nd Respondent in the Original Petition, is the next seniormost member of the Kovilakam and the 2nd respondent in the Criminal Revision Petition who is the 3rd respondent in the Original Petition is the son of the late Valia Raja. After the death of the Valia Raja on 31-1-1958 the petitioner claimed to be in possession of the temple and its properties under a registered agreement Exit. A3, alleged to have been executed by the Valia Raja on 30-1-1958. According to him he was functioning as Kariasthan from 1954 and he was appointed as agent by the Valia Raja on 1-5-1956. It is also alleged that the Valia Raja took a cash security of Rs. 5,000/-from him on 1-6-1957 and another sum of Rs. 5,000/-in December 1957 and that an agreement was executed and registered on 30-1-1958, appointing him as agent for 5 years and further providing that he was to reimburse himself the sums advanced, from the income of the temple and its properties. The petitioner who thus claimed to have an agency coupled with an interest moved the Executive First Class Magistrate of Ottappalam stating that Respondents I and 2 in the Criminal Revision Petition were attempting to disturb his possession. On the report of the Police that a dispute likely to cause a breach of the peace existed, the Magistrate passed a preliminary order under Section 145(1) of the Cri. P. C. on 10-2-1958. On 5-3-1958 the Magistrate attached the temple and its properties and placed the same in the possession of a receiver. As the petitioner and the 1st respondent claimed possession and as the Magistrate was unable to decide the question he referred the question as to which party was in possession, to the District Mun-siff. Perunthalmanna under Section 146(1). The learned Munsiff took evidence and entered a finding in favour of the 1st respondent. On the basis of this finding the Magistrate declared the 1st respondent's possession and directed that the receiver should hand over possession of the temple and its properties to him. The Criminal Revision Petition is directed against this order,

(2.) In the Original Petition the petitioner seeks to quash the finding of the Munsiff on the question of possession and the order of the executive First Class Magistrate who is made the 1st respondent. It is stated that the findings of the Munsiff and the executive First Class Magistrate are illegal and without jurisdiction and the Original Petition is filed under Articles 226 and 227 of the Constitution as the petitioner has no right of appeal or revision against the finding recorded by the Munsiff. The two petitions were heard together. The parties will be referred to hereafter in accordance with their respective position in the Criminal Revision Petition.

(3.) Ordinarily the remedy of a person aggrieved by a decision under Section 145 is to file a suit in the Civil Court. The petitioner however urges that the decision is vitiated by illegality, exercise of jurisdiction not vested in the courts, and failure to exercise jurisdiction. The points raised by the petitioner' s learned Counsel are: (1) That the Munsiff and the Magistrate had no jurisdiction to adjudicate on the genuineness and binding nature of the agreement executed by the Valia Raja in favour of the petitioner; (2) That the Munsiff, had no jurisdiction to decide the question of the status of the 1st respondent in the Criminal Revision Petition on the basis of the Hindu Succession Act (XXX of 1956) and the Hindu Succession Amendment Act (XXVIII of 1958) and (3) That the Munsiff failed to exercise his jurisdiction inasmuch as he omitted to record that the 1st respondent was in possession.