KOCHADAI NAIDU Vs. NAGAYASAMI NAIDU

JUDGEMENT

(1.) This application is filed under Section 24 C. P. C. for the transfer of the proceedings in M. C. No. 8 of 1957, on the file of the District Munsif's Court, Periakulam, to the Sub Court, Dindigul, to be tried along with O. S. No. 35 of 1958 on its file. The petitioners who are the sons of the third respondent, and respondents 1 and 2 are descended from a common ancestor. The former claimed that they were members if a joint Hindu family with the latter. Respondents 1 and 2, however, state that the 3rd respondent had been taken in adoption by a divided paternal grand uncle of theirs, and that there is no such coparcenary as clamed. Sometime ago disputes ensued between the parties in regard to the possession of certain properties, and they assumed such proportions as to threaten a breach of the peace. The police, thereupon, initiated proceedings under Section 145 Cr. P. C. against both the parties before the Executive First Class Magistrate, Usilampatti in M. C. No. 8 of 1957. The Magistrate attached the properties and forbade either party from entering them. After examining a few witnesses, the Magistrate felt that the matter was one where the questions involved could only be decided by a civil court, and, accordingly, by his order dated 1-12-1958, directed the parties to establish their respective rights in a suit. Even before the disposal of that case, the petitioners had instituted O. S. No. 35 of 1958 in the Sub-Court, Dindigul, for partition of the disputed properties.

(2.) While that suit was pending, there was a change in the personnel of the Executive First Class Magistrate, Usilampatti. The magistrate who succeeded the one who passed the order dated l-12-58 was of the view that the disposal of the proceedings under Section 145 Cr. P. C. was not in accordance with the Criminal Procedure Code as amended; he, therefore, revived the case. Finding however, that it was difficult to decide as to which of the parties was in possession on the material date, he referred the matter to the District Munsif Periakulam, for a decision under Section 146 Cr. P. C. This order was passed on 6-11-1939.

(3.) In the present petition, it is prayed that M. C. No. 8 of 1957, now pending decision in the District Munsif's Court, Periakulam, should be transferred to the Sub Court, Dindigul, to be tried along with O. S. No. 35 of 1958.