P GANESAN Vs. FERNANDOUS

JUDGEMENT

(1.) ON ordering notice of motion while the present revision Petition was sought to be admitted which challenges the order passed by the learned District and Sessions Judge, Pasumpon Muthuramalinga Thevar district at Sivaganga in Crl. R. P. No. 11 of 1995 dated 9. 11. 95 for want of certain legality and propriety, I had the occasion to hear the Bar appearing for the respective parties for and against the impugned order.

(2.) THE revision petitioners belong to the Marumalarchi dravida Munnetra Kazhagam (MDMK) of Ariyakudi unit in Karaikudi Taluk who were respectively members of the parental party Dravida Munnetra Kazhagam with the persons of the A party in a like position. An extent of 0. 48. 5 hectares of road poramboke in Ariyakudi Village of Karaikudi Taluk situated in S. No. 98 appears to have been in possession and enjoyment of the party DMK and in which a terraced building was put up and constructed as evident from the extract of house tax assessment register for assessment number 647 standing in the name of "dmk Branch Office", however without any door number. Thus the party dmk took possession of the above immovable property a house which was declared opened by its General Secretary Thiru. K. Anbazhagan in the year 1986 and that since then onwards it has been in actual and continuous possession of the party lead by the respondent herein who is A party. Due to the split in the said party DMK occurred during July 1994 and as a result of an incident happened on 10. 7. 94, the Secretary by name Fernandas of the Ariyakudi DMK branch lodged a complaint to the Karaikudi South Police Station about the removal of the foundation stone laid down by its General Secretary and the illegal trespass and mischief by the B party. THE said complaint was registered as Cr. No. 298 of 1994 in Karaikudi South Police Station. This was followed by registering of another complaint in Cr. No. 301 of 1994 at about 8. 00 am on 14. 7. 1994 for the of fence under Sec. 145 of Cr. P. C. That shows that both A&b parties are claiming a right to be in possession of the said property and as a result of which a breach of peace was apprehended and that accordingly, the learned sub-Divisional Executive magistrate (Sub-Collector), Devakottai in M. C. No. 336 of 1994 has initiated proceedings under Sec. 145 (4) of Cr. P. C. After giving adequate time for both the parties to file objection and documents if any to substantiate their respective case and also passing an interim order, the sub-Divisional Executive magistrate has held that the B party viz. , the revision petitioners are entitled to be in possession of the property in question and against which a revision before the District Judge, Sivaganga has been filed by the A party in Crl. R. P. No. 11 of 1995. After hearing both the parties in extenso alongwith the entire case records and on a perusal of the same, the learned District Judge has set aside the order passed by the sub-Divisional Executive Magistrate in M. C. No. 336/94 dated 20. 2. 95 and put the A party in possession of the building in question on the ground that as on the date of complaint they were held to be in possession and enjoyment of the property and also as they are the original owners of the same and that the revision petitioners herein viz. , the B party were the defectors from the A party and became a new party with a new name and as such they have no right to be in occupation or possession of the same. It was this order passed by the learned District Judge is being challenged and canvassed for want of its propriety and legality in this revision.