ABDUL RASHEED Vs. SYED

JUDGEMENT

(1.) This revision is directed against the order dismissing the petition filed under section 145 of the CODE OF CRIMINAL PROCEDURE, 1973 passed by the Revenue Divisional Officer and Executive First Class Magistrate, Usilampatti in M.C. No. 1 of 1981.

(2.) The case of the petitioner is that he took the lands of an extent of 3. 18 acres in Kanavoipatti Village Nilakottai Taluk on lease from Muthavalli K.A. Abdul Karim, that the application filed by the petitioner to register his name as tenant under the Record of Tenancy Rights Act was allowed, that in respect of the management of the wakf properties, dispute arose between Muthavalli and Wakf Board Officials, that a civil suit was filed, that the counter-petitioners were trying to interfere with the possession and enjoyment of the lands by the petitioner and that the petitioner, who apprehended breach of peace, instituted proceedings under section 145, CODE OF CRIMINAL PROCEDURE, 1973. The learned Executive First Class Magistrate passed a preliminary order under section 145(1) on 12-1-1981 granting an interim injunction in favour of the petitioner restraining the counter petitioners from interfering with the possession and enjoyment of the lands by the petitioner till the disposal of the case and directing parties to appear before him and file statement in writing of their respective claims regarding the actual possession of the land and produce documents in support of their respective claims. The counter-petitioners opposed the claim contending that due to differences between the trustees, majority of them requested the Tamil Nadu Wakf Board to take over possession of the properties of Pallivasal, that Muthavalli K. Abdul Karim also agreed to surrender the properties to the Wakf Board, that the Executive Officer, Madurai took possession of the properties on 9-9-1980 and since then he is in management and administration of the properties, that the petitioner executed a varthamanam letter on 1-4-1980 when he executed a lease deed in favour of Muthavalli K. Abdul Karim, that the petitioner suppressed the factum of dismissal of the petition filed by him for temporary injunction in I.A. No. 2534 of 1980 in 0.S. No. 1172 of 1980 by the District Munsif, Dindigul, that only after the dismissal of the said application, public auction was held on 13-11-1980 for leasing out the lands, that counter-petitioner No.2 was the highest bidder and he is put in possession of the lands for cultivation, that the petitioner has not preferred any appeal against the dismissal of the injunction petition, that the petitioner Is the aggressor and that he has no right over the lands in question.

(3.) The learned Magistrate observed in his order that the lease deed dated 1-4-1980 executed in favour of the petitioner was long before taking possession of the properties by the Wakf Board that the petitioner has failed to approach the present owner viz., the Wakf Board to recognise him as tenant in the light of the lease executed by the erstwhile Manager (muthavalli) and that since he has failed to do so, the lease deed is not valid, The learned Magistrate further observed that the petitioner has not included the present owner in the petition filed to register him as tenant before the Record Officer, Nilakottai, that under the varthamanam letter dated 1-4-1980, the petitioner has agreed to be an agent and cultivate the lands, that the petitioner has not chosen to mention about the dismissel of the injunction application, but he has mentioned about the injunction obtained by K.A. Abdul Rahim and two others against the Tamil Nadu Wakf Board and that the Record Officer on the application filed by the Executive Officer, Pallivasal, ordered fresh enquiry in T. R. No. 38 of 1980 after impleading the Executive Officer and one Raju as parties. The learned Magistrate dismissed the petition on the ground that the lease deed is not valid, that the petition filed for temporary injunction by the petitioner was dismissed and that fresh enquiry was ordered in the petition to register him as tenant. 3. Section 145 (4), CODE OF CRIMINAL PROCEDURE, 1973, reads as follows: "The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible decide whether any and which of the parties was, at the date of the order made by him under sub-section (1) in possession of the subject of dispute: