RAMASWAMY AND OTHERS Vs. KUNCHI ALIAS GAVARAN

JUDGEMENT

(1.) THIS revision petition arises out of the proceedings under Section 145, Code of Criminal Procedure The short facts of the case are that one Kunchi alias Gavaran, the Respondent herein, made an application against the Petitioners herein before the Executive First Class Magistrate, Hosuron(sic) M.C.2 of 1973 on his file, praying for a declaration that he (Respondent) is entitled to possession of the property described in the schedule ,viz., (1)S. No. 260/1, wet, 2 -47 -0 hectares and (2) S. No. 260/2, dry 3 -63 -5 hectares, of Jagadab village, within Kaveri -patnam sub -registration district in Krishnsgiri taluk, and for necessary orders directing the Petitioners not to interfere with his possession. A preliminary order under Section 145(1) Code of Criminal Procedure was passed and served on the Petitioners, stating that a dispute between the parties, which was likely to cause breach of the peace, existed in respect of S. No 260/1 and the Petitioners were required to put in their statements of their claim in respect of their possession and enjoyment of the land specified in the notices .

(2.) THE said case was transferred to the Chief Judicial Magistrate, Krishnagiri, and was numbered as M.C. No. 623 of 1973, which was then forwarded to the District Munsif, Krishnagiri, for deciding the question of possession of the 'subject of dispute'. The District Munsif, took the matter on his file in O.P. 13 of 1974, and after elaborately discussing the evidence adduced on both sides and the documents marked, and finding that the Petitioners had been in possession of the properties, directed the parties to appear before the Chief Judicial Magistrate, Krishnagiri, who thereafter passed the final order declaring that the Petitioner was in possession of the properties described in the schedule to the petition (covering both S. No. 260/1 and 266/2) and entitled to retain such possession until ousted by due course of law and strictly forbidding any disturbance of his possession in the meantime. At the outset, I may point out that no argument was advanced on behalf of the Petitioner in respect of the order passed relating to the property in S. No. 260/1. But Mr. T.K. Rajagopalan, learned Counsel appearing for the Petitioners, mainly contends that the final order 'declaring that the Petitioner was in possession of the properties described in the schedule to the petition" which obviously covers the lands in both S. No. 260/1 and 260/2, is one without jurisdiction as the preliminary order passed under Section 145(1) by the Executive First Class Magistrate relates to the property in S. No. 260/1 alone and the reference by the Chief Judicial Magistrate to learned District Munsif was made for deciding the question as to who was in possession of the 'disputed land' on the date of the preliminary order, wherein the land in S. No. 261/1 alone is mentioned, and there -fore, the present final order covering the lands in both the survey fields is irregular and bad in law. Further, he vehemently submits that this irregularity is an error of jurisdiction vitiating the operation of the order so far as S. No. 260/2 is concerned.

(3.) BEFORE going into the merits of this case, I shall now discuss the effect of the omission of the land in dispute in the preliminary order and the importance of the preliminary order as 8 condition precedent in the subsequent proceedings.