PERIA SUBBA GOUNDAN Vs. SINNA SUBBAYYA GOUNDAN

JUDGEMENT

(1.) This dispute is concerning immoveable property and action was taken under Section 145 Criminal Procedure Code. The petitioner claimed to be in possession of the property and the rival claimant was the seventh counter petitioner. The Magistrate held an enquiry, and under Clause 6 of Section 145 issued an order declaring the respondent to be entitled to possession until evicted in due course of law. The Magistrate has written no judgment and has recorded no findings. The order is short and is in the following terms : "7 Counter-petitioner is declared to be put in possession of the land described hereunder. Fill up schedule form accordingly."

(2.) Magistrates are apparently supplied with printed forms prepared under the Code for ministerial purposes to suit the requirements of Section 145, and in this instance, one such form was issued. It is in truth, a tamil rendering of form No. 22 of Schedule V of the Criminal Procedure Code. The Magistrate has purported to act under Clause 6, but it is obvious that his order contravenes its provisions. Under that clause it is obligatory upon him to decide which of the parties was in possession, and Clause 4 enacts that the finding is to relate to actual possession on the date of the preliminary order. Clause 6 runs thus : "If the magistrate decides that one of the parties was in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction." The Magistrate issued an order declaring the respondent to be entitled to possession without deciding that the respondent was on the date of the preliminary order, in actual possession.

(3.) It was contended for the petitioner that the Magistrate had no jurisdiction to make such a declaration as the declaration was not preceded by, and did not follow from, a decision which complied with the provisions of the section. In other words it was that the Magistrate ignored those provisions of the section which rendered a judicial determination necessary and that he merely contented himself with issuing a formal and ministerial order. Mr. Panchapagesa Sastriar, on the other hand for the respondent very strenuously contended that it should be assumed that the Magistrate arrived at a mental decision, though he failed to record it, and that the declaration in his order necessarily involved a decision in regard to actual possession. In the absence of a judgment and in the absence of findings, he urged, that the High Court should assume that the Magistrate did direct his mind to the question at issue and he decided, as it was his duty to decide, that the party in whose favour the order was made was in actual possession on the date of the preliminary order.