KALAIMANI Vs. ANTHONISAMY

JUDGEMENT

(1.) THIS Criminal Revision is directed against the order, dated 06.09.2004, passed in M.C.No.106/99, on the file of the Sub Divisional Magistrate, Karaikal, under Section 145 of the Code of Criminal Procedure, by and which the Sub Divisional Magistrate, held that the respondents herein are entitled to retain the possession of the disputed area, until they are evicted by competent Civil Court, as per law.

(2.) THE learned counsel appearing for the Criminal Revision Petitioner would contend that the Sub Divisional Magistrate has decided the M.C.No.106/99 beyond his jurisdiction, and against the verdict of the Civil court. THE learned counsel for the revision petitioner further contended that the Sub Divisional Magistrate cannot decide as to, who is in possession of the property, since the same has to be decided by the Civil Court and as per the impugned order, the Executive Magistrate has held that the respondent herein are in possession of the property, against law. In support of his contention, the learned counsel relied on the decisions 1. V.Jayachandran @ Chandran v. THE Sub-Divisional Manager & others, reported in 2002 (1) MWN (Cr.) 110. 2. Shanmugham and another vs. THE Inspector of Police (Law and Order), Gobichettipalayam & others, reported in 1997 (2) MWN (Cr.) 346.

(3.) CONSIDERING the oral and documentary evidence recorded and on hearing the arguments of both sides, the appellate court held by its Judgment that the first respondent herein is entitled to an injunction against the revision petitioner and another, in respect of 2 - mahs of nanja land. The court has further held that the appeal in respect of the claim of possession and enjoyment of fishing right in the pond Ananthakulam was also allowed, until the license would be cancelled or revoked by lessor Selvaraju and others. In the said Judgment, the Additional District Court, further, ordered that the first respondent herein is not entitled to any injunction against the revision petitioner G.Kalaimani and another in respect of other two ponds described in the plaint as Sambukulam and Kuttakulam. As per the decision of the Civil Court, namely, the Additional District Court, Karaikal, by Judgment, dated 03.05.1991, made in A.S.No.49 of 1989, it has been further held that in the event of any dispute over the extent of the three ponds, the parties to the said appeal would be entitled to file application for appointment of Commissioner for inspection to locate and find out actual extent of each of the pond and that the order was passed without prejudice to the rights of other respondents therein. With that findings, the appeal preferred by the first respondent herein was allowed on the aforesaid terms and conditions. Subsequently, Anthonisamy, the appellant in A.S.No.49/89 filed an Interlocutory Application in I.A.No.69/93, under Order 26 Rule 9 of the Code of Criminal Procedure for appointment of an Advocate Commissioner, seeking for a direction to inspect the suit property to measure the same, so as to locate and identify 2 - mahs of land, for which he was entitled to be in possession of the property, and accordingly, Advocate Commissioner was appointed.