KALYANIAMMAL Vs. KRISHNASAMY GOUNDER

JUDGEMENT

(1.) ONE Chandrasekara Udayar is the original owner of two pieces of land measuring 0. 10. 0. hectares in R. S. No. 76/1 and 0. 40. 5. hectares in R. S. No. 32/7 of Konjimangalam village, East Vanur Taluk in South Arcot District. The present first respondent Krishnasamy Gounder, claiming that he is a cultivating tenant of the land under Chandrasekara Udayar and that the petitioner and respondents 2 and 3 herein are trying to dispossess him, filed an application under Sec. 145, Crl. P. C. in M. C. No. 7 of 1987 before the executive Second Class Magistrate, Vanur. He also took steps to get his name registered as a tenant under the Record of Tenancy Act. The petitioner who is the wife of Chandrasekara Udayar pleaded therein that item 1 of the lands has been settled by her husband on their daughter Santhanalakshmi under the deed dated 10. 2. 1970. She has been appointed as guardian of the minor daughter in the said settlement deed. The second item is the ancestral land of her husband. They had not leased out the land to anybody and they alone were cultivating the same. The present first respondent and others in order to grab the property instituted O. S. No. 679 of 1985 in respect of these lands in the court of district Munsif of Tindivanam and obtained an ad interim injunction. However after enquiry the petition was dismissed and the injunction was vacated. C. M. A. No. 5 of 1987 preferred by the first respondent and others against the said order is still pending. In the impugned order dated 15. 3. 1990, learned executive Magistrate has stated that the petitioner has filed O. S. No. 1104 of 1989 in the Court of District Munsif, Tindivanam claiming title to item I of the suit properties and that in the same Court her daughter Santhanalakshmi also has instituted O. S. No. 83 of 1986 claiming the property as hers and that both suits are pending. The order of the Magistrate also reads that O. S. No. 679 of 1985 was pending and the evidence on record establishes that item 2 of the properties was not in the enjoyment of Kalyani Ammal and others and that he was dismissing the application. Evidently this order is not intelligible. It is not known what were the records considered and how they led to that conclusion.

(2.) LEARNED counsel for the petitioner submits that while a. S. No. 83 of 1986 was dismissed for default on 21. 3. 1990 no appeal against the decree in O. S. No. 679 of 1985 is pending. The injunction petition I. A. No. 1503 of 1985 in O. S. No. 679 of 1985 filed by the tenant in the civil court in respect of the very same property between the parties herein has already been dismissed. The appeal preferred by the first respondent was also unsuccessful thus the civil court has held in O. S. No. 679 of 1985 that the petitioner is in absolute enjoyment of the property. When a competent civil court has found possession in favour of the petitioner, this order of the Executive Second class Magistrate under Sec. 145, Crl. P. C. is unsustainable.

(3.) SO it cannot be disputed that the decree of the civil court is binding on the criminal court in a matter like this. The ratio of the decision in Ram Sumer Puri v. State of Uttar Pradesh, A. I. R. 1985 S. C. 472, is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject-matter. In this case the civil court has already negatived the plea of the first respondent/tenant for injunction. In other words the civil court has not recognised the possession claimed by the tenant. While so, it is not open to the Executive magistrate to take a contrary view and pass an order under Sec. 145, Crl. P. C. that the possession re-named with the tenant. Once the civil court passes a decree on the subject-matter of the proceedings, it is binding upon the Magistrate'If the civil court had passed a decree prior to the initiation of proceedings under Sec. 145, Crl. P. C. , there is no scope for the Magistrate to take action under Sec. 145, Crl. P. C. and decide the question of possession.