CHEPANA APPALA NAIDU Vs. CHEPANA PEDDA APPALA SWAMY

JUDGEMENT

(1.) This Revision case has been filed questioning the order, dated 24-11-1992 passed by the Mandal Executive Magistrate, Therlam Mandal, Vizianagaram district in M.C.No. 5 of 1992 holding that 1st Respondent was in possession of the land to an extent of 4 acres 75 cents in Survey No. 5/2, situated at Velagavalasa village, Therlam Mandal in Vizianagaram district in the proceedings initiated under Section 145 Cr.P.C.

(2.) On 11-11-1992, Sub-Inspector of Police, Therlam filed a complaint under Section 145 Cr.P.C. apprehending breach of peace regarding disputed possession of the property between the petitioners and the 1 st Respondent. The Executive Magistrate, on consideration of the material before him and also the decree in O.S.No. 157 of 1986, dated 23-9-1992 on the file of the District Munsif, Bobbili held that the 1 st Respondent was in possession of the disputed properly on the date of passing of the order and accordingly declared mat 1st Respondent was entitled to retainsuch possession until he is ousted by course of law.

(3.) It is contended by the learned counsel for the petitioners that the petitioners have got 1/6th share each and the 1 st Respondent has got only 1/6th share in the disputed property and the suit filed by the 1st Respondent for injunction was dismissed on 23-9-1992 and the court clearly held that he had no prima facie title over the entire property and that he was not in possession of the disputed land and the injunction petition filed in 1st Respondent's appeal was also dismissed and in those circumstances, the Executive Magistrate has no jurisdiction to entertain the proceedings under Section 145 Cr.P.C. On the other hand, it is contended by Sri Sadasiva Reddy, learned counsel for the Respondent No. 1 that there is no decree or order in favour of the petitioners by the civil court and in the absence of any order or decree of the civil court, the Executive Magistrate is entitled to initiate proceedings under Section 145 Cr.P.C. and decideabout the disputed possession and the order of the Magistrate, being on the basis offacts, cannot be interfered with by this court.