KANNIAMMAL Vs. PERIYA THANNASI

JUDGEMENT

(1.) THIS is a criminal revision petition against the order passed by the learned Sub Collector and Sub Divisional Magistrate, Dindigul under S. 145(6) of Criminal Procedure Code that the respondent herein will be in possession of the land until such time at the competent authority decided the dispute regarding the possession of the property. The A -party before the learned Magistrate who is the petitioner in the Court claims to be in possession of 3.90 acres in survey number 434 of Periammapatti village, Palni Taluk, as a cultivating tenant, under one G.D. Narendran through Rahmathulla. Periya Thannasi, the first respondent herein also claims to be in possession as a cultivating tenant under the same landlord. The learned Magistrate had inspected the land, and had come to the conclusion that the first respondent herein is in possession. This conclusion, she has arrived at by making some local enquiries. The learned Magistrate was not justified in relying on facts gathered by her by making what she calls "local enquiries". The persons whom she had interrogated in the course of such local enquiry might have been biased one way or the other and her knowledge itself regarding possession might not have been based on what they had known directly and personally, but on what they might have heard. That is why in proceedings in a court of law only statements made by witnesses on oath who can be cross -examined by the party opposite to the party calling the witness can be used as evidence. Bazaar rumors cannot be called evidence in any sense of that word and cannot be relied on for deciding the rights of parties.

(2.) THE learned Magistrate has observed that "the crops have been raised by Periya Thannasi" and that "this is obvious as C.P.I. 'B' party is in actual physical possession of the land." She has not given any sound reason for coming to the conclusion that C.P.I of 'B' party is in actual physical possession of the land. The mere fact that the revision petitioner, Kanniammal, is residing in a shed situate in a neighbouring land does not go to show that she is not in possession of the land in dispute. The possession of a land by a person can only be such possession as the land is capable of. If it is a house the party claiming possession may be expected to reside there or have the house under lock and key. In the case of a cultivable land, a party can be in possession only by raising crops. The question who raised the crops can be decided only after ascertaining who was in actual physical possession. The learned Magistrate has come to the conclusion that the crops have been raised by Periya Thannasi, because he is in actual physical possession of the land. For coming to this latter conclusion she had no evidence, oral or documentary before her except the vague statements of the anonymous persons whom she teems to have interrogated in the course of a local enquiry of a roving nature.

(3.) IN the proceedings under S. 145, Cr. P.C. the decree of injunction passed by a civil court must be respected by the Magistrate concerned. The possession of the decree -holder in whose favour a decree for injunction had been passed, must be protected by the Magistrates, if necessary by taking recourse to proceedings under S. 107, Cr. P.C., or S. 144, Cr. P.C. against the defendant or defendants who had lost in the civil court and against whom a decree is in force.