Madras High Court
Thylayee Ammal vs Srirangaroya Goundan And Anr. on 5 May, 1922
Equivalent citations: 71IND. CAS.228
ORDER Ramesam, J.
1. This revision petition is against an order of the Sub-Divisional Magistrate of Erode, dated 8th of December 1921. An objection has been taken by Mr. Govindaraghava Iyer, the learned Vakil for the respondents, that I have no power to interfere. He relied on Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753 (Ayling and Napier, JJ.,) and Sakhawat Ali v. Emperor 51 Ind. Cas. 337 : 41 A 302 : 17 A.L.J. 331 : 20 Cr.L.J. 449, (Knox, J.) A sentence in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753 "Once he is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation to procedure, not jurisdiction" quoted with approval and followed in Vellanki Srinivasa Jagannatha Rao v. Gopalakrishan Rao 53 Ind. Cas. 613 : 37 M.L.J. 589 : 10 L.W. 447 : 20 Cr.L.J. 773 (Ayling, J.) produces the first impression. That it decided that once the proceedings are properly started under Section 145, there can be no challenge of those proceedings before the High Court. But the words "must be considered in relation to procedure" do not support such a view of the case. They rather show that no point of jurisdiction can be made after the initial stage but only a question of serious irregularity in procedure. For, if no such power of interference exists, there is nothing to consider. The point argued in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753, was only a question of jurisdiction and the observations in the judgment refer to the only contention raised before the learned Judges. In Vellanki Srinivasa Jagannatha Rao v. Gopalakrishan Rao 53 Ind. Cas. 613 : 37 M.L.J. 589 : 10 L.W. 447 : 20 Cr.L.J. 773 the irregularity complained of was that some of the evidence was taken by another Magistrate, to whom part of the enquiry was delegated, and I must take it that, in the opinion of his Lordship (Ayling, J.), it was not such an irregularity as to justify an interference with the orders in Criminal Revision Case No. 407 of 1920. Napier, J., who was the other learned Judge who took part in Kamal Kutty v. Udayavarma Raja Valid Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753, said: "It would have been better if he had; referred to the evidence in his order, but, I cannot treat the absence of such a reference as a serious irregularity, much, less a want of jurisdiction"--showing that a serious irregularity may be a ground for interference. (Otherwise these words are unnecessary). I will show later on that, where serious irregularity is a ground for interference the interference can be only under the Charter Act (Section 107) and not under Section 439 of the Criminal Procedure Code.
2. Anyhow, Mr. Govindaraghava Iyer had to concede in the course of the argument, with reference to other decisions, to which I shall presently refer, that there may be cases in which the High Court can interfere on account of serious irregularity in the proceedings of the Magistrate amounting to improper exercise of jurisdiction or improper refusal to exercise his jurisdiction. In Muhammad Koolayappa Rowthan v. Sheik Abdul Khadir Rowther 25 Ind. Cas. 324 : 27 M.L.J. 169 : 15 Cr.L.J. 572, (to which Ayling, J., was a party) it was held that, where the finding of the Magistrate was that the parties had joint possession, Section 145 does not apply and the order was set aside. I agree with this decision and the cases in Nritta Gopal Singh v. Chandi Charan Singh 10 C.W.N. 1088 : 4 Cr.L.J. 215, Makhan Lal Roy v. Barada Kanta Roy 11 C.W.N. 512 : 5 Cr.L.J. 296 and Manik Chandra Chakravarti v. Preo Nath Kuar 17 Ind. Cas. 533 : 17 C.W.N. 205 : 17 C.L.J. 397 : 13 Cr.L.J. 789 on which it was founded. See also Basanta. Kumari Dasi v. Mahesh Chandra Laha 19 Ind. Cas. 541 : 40 C. 982 : 17 C.W.N. 944 : 14 Cr.L.J. 269. I wish to point out that the High Court could not interfere in such a case if the sentence in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753, quoted above, is understood as if it meant to lay down that the High Court can never interfere if it were satisfied that the proceedings started properly. In Tarujan Bibee v. Asamuddi Bepari 4 C.W.N. 426, Dharani Kanta Lahiry v. Girija Kanta Lahiry 8 C.W.N. 485 : 1 Cr.L.J. 367 and Radha Raman Ghose v. Baliram 32 C. 249 : C.W.N. 885 : 1 Cr.L.J. 847 it was held that the possession of a partner or a trustee or an agent is the possession of all the partners, co-trustees, or principal, and Section 145 should not be used to protect such possession, and orders under Section 145 were set aside. It is true that the first of these cases was dissented from in Narayana Asari v. Kandasami Asari 29 Ind. Cas. 541 : 3 L.W. 164 : 16 Cr.L.J. 525, reversing the decision of Sadasiva Iyer, J., in Kandasami Asari v. Narayana Asari 26 Ind. Cas. 644 : 2 L.W. 107 : 16 Cr.L.J. 52, But the dissent is on the merits, as to the proper scope of Section 145 and the nature of the possession governed by it. All these cases are authorities for the proposition that, when Section 145 is seemingly misapplied, the High Court can interfere. If the correct view is, that an agent's possession or sole partner's possession would not be protected under Section 145 (as these Calcutta cases hold) but the Magistrate issued an order under Section 145, the High Court will interfere to set aside the order. If the correct view is, that such possession must be protected under Section 145 which is the view in Narayana Asari v. Kandasami Asari 29 Ind. Cas. 541 : 3 L.W. 164 : 16 Cr.L.J. 525, the High Court will interfere to set aside an order refusing to give such protection. The case in Narayana Asari v. Kandasami Asari 29 Ind. Cas. 541 : 3 L.W. 164 : 16 Cr.L.J. 525 cannot be explained away on the ground that the Magistrate in that case gave the order; that it was a Single Judge of the High Court (Sadasiva Iyer, J.) that vacated it, and the Judges who decided Narayana Asari v. Kandasami Asari 29 Ind. Cas. 541 : 3 L.W. 164 : 16 Cr.L.J. 525, sitting in Letters Patent Appeal restored the Magistrate's order. I imagine that if the Magistrate himself refused to pass an order under Section 145, in that case the High Court will be equally empowered to interfere; for, I do not think anybody would contend for the absurd anomaly that the High Court can interfere in Letters Patent Appeal with a wrong order of a Single Judge of this Court but not with a wrong order of the Magistrate. Such a view will involve the further anomaly that the High Court can interfere, where the Magistrate refused an order under Section 145 and a Single judge confirmed it, but the Single Judge himself cannot set aside the order of the Magistrate even if he knew it to be wrong.
3. Now I come to other instances of interference 26 Ind. Cas. 156 : 1 L.W. 939 : 15 Cr.L.J. 708 (to which Ayling, J., was a party) it was held that there was no finding and the case was sent back. In Velu Malavarayan v. Kuppuswami Pillai 59 Ind. Cas. 378 : 12 L.W. 315 : 22 Cr.L.J. 90 Ayling and Coutts-Trotter, JJ. Interfered in case where there were several items on the ground thtat all the claimants of the various items were not made parties. I am clear therefore that neither Ayling, J., nor Napier, J., meant what is sought to be attributed to the decision in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753. In Sreemanavedava Raja v. Parapravan Naidu 54 Ind. Cas. 254 : 38 M.L.J. 73 : (1920) M.W.N. 133 : 27 M.L.T. 85 : 11 L.W. 285 : 21 Cr.L.J. 46 no oral evidence was taken and the case was sent back by two Judges of this Court. In Marudanayakam Pillai v. Mohammad Rowthen 34 Ind. Cas. 329 : 17 Cr.L.J. 217 Seshagiri Iyer, J., interfered on the ground that the Magistrate refused to take the evidence of witnesses tendered. He distinguished Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 at p. 286 : 12 M.L.T. 439 : (1912) M.W.N. 1154, 23 M.L.J. 499 : 13 Cr.L.J. 753. In Pananganti Parthasarathy v. Venkatasami Reddi 6 Ind. Cas. 398 : 34 M. 138 : 8 M.L.T. 104 : (1910) M.W.N. 400 : 11 Cr.L.J. 353 Miller, J. Set aside the Magistrate's order on the ground that it dealt with the right to possession and not to the actual possession. In Kailashbehari Lal v. Jai Narayan Rai 57 Ind. Cas. 169 : (1920) Pat. 288 : 1 P.L.T. 291 : 21 Cr.L.J. 601 the whole oral evidence was not considered and the High Court interfered. In Atul Hazra v. Uma Charan 33 Ind. Cas. 822 : 23 C.L.J. 555 : C.W.N. 796 : 17 Cr.L.J. 182 the High Court (Chitty and Walmsley, JJ.) interfered on the ground that a judgment-debtor should not be protected under Section 145.
4. In Lal Behari Saha v. Benjoy Sankar Sikdar 10 C.W.N. 181 : 3 Cr.L.J. 193 that High Court set aside the order on the ground that the order was based on what the Magistrate saw and heard and inferred at the local enquiry and which is not on the record. This case comes nearest to the case before me. In Arumuga Govindan v. Venkatasubbir 31 M. 82 : 17 M.L.J. 535 : 3 M.L.T. 108 : 6 Cr.L.J. 384 Wallis, J., set aside the order of the Magistrate on the ground that the Magistrate himself ought to take the Magistrate himself ought to take the evidence and the order was based solely and substantially on evidence recorded by a Subordinate Magistrate. I would here point out that the decision in Vellanki Srinivasa Jagnnatha Rao v. Gopalakrishan Rao 53 Ind. Cas. 613 : 37 M.L.J. 589 : 10 L.W. 447 : 20 Cr.L.J. 773 is inconsistent with this, and as between the two I would prefer to agree with the view of Wallis, J., in Arumuga Govindan v. Venkatasubbier 31 M. 82 : 17 M.L.J. 535 : 3 M.L.T. 108 : 6 Cr.L.J. 384.
5. When there is initial want of jurisdiction, it is clear that the proceedings, though they may purport to be under Section 145, Criminal Procedure Code, are not rally proceedings under it and the High Court can interfere under Section 439, Criminal Procedure Code, but if the proceedings were propertly started, all interference on the ground of serious irregularity amounting to improper exercise of jurisdiction or improper refual to exercise it can be only under Section 107 of the Charter Act. In Bhaskari kasavarayudu v. Bhaskaram Chalapatirayudu 31 M. 318 : 18 M.L.J. 343 : 4 M.L.T. 301 : 8 Cr.L.J. 205 the petition was filed under Section 439, Criminal Procedure Code, and there was no question of jurisdiction. This was pointed out by Sadasiva Iyer, J., In Palani Chetty v. Rathina Chetty 24 Ind. Cas. 597 : 26 M.L.J. 208 : (1904) M.W.N. 352 : 15 Cr.L.J. 509, where he held that the High Court had power to interfere under the Charter Act in an appropriate case. I may add that the High Court in Bhaskari Kasavarayudu v. Bhaskaram Chalapatirayudu 31 M. 318 : 18 M.L.J. 343 : 4 M.L.T. 301 : 8 Cr.L.J. 205 considered the argument on the merits and held that Section 145 may be used to protect the possession of a Manager of a joint family, following Sri Mohan Thakur v. Narsing Mohan Thakur 27 C. 259 :4 C.W.N. 420 : 14 Ind. Dec. (N.S.) 171 and distinguishing Tarujan Bibi v. Asamuddi Bepari 4 C.W.N. 426, Dharani Kanta Lahiry v. Girija Kanta Lahiry 8 C.W.N. 485 : 1 Cr.L.J. 367 and Radha Raman Ghose v. Baliram 32 C. 249 : C.W.N. 885 : 1 Cr.L.J. 847 (which was cited before them--though the report does not give the references) as "cases of co-trustees or ordinary partners in which the rights of each trustee or partner are equal." In Sundar Nath v. Emperor 44 Ind. Cas. 673 : 40 A. 364 : 16 A.L.J. 189 ; 19 Cr.L.J. 369 the opinion of Walsh, J., seems to be that, though the High Court cannot call for records under Section 439 or the Charter Act, the party can invoke the superintending power of the Court, if the record had been sent for and the application had been admitted.
6. I would observe that I have not considered, as it is irrelevant, the particular irregularity which was the ground of interference in each of the cases cited by me. It is possible that different Judges may take different views on the question whether a particular irregularity is grave enough to justify interference. I have cited them only to show that the power exists, provided that there is irregularity serious enough to vitiate the order in the opinion of the Court.
7. In the present case, the plea of the counter-petitioner was, that Sellappa Goundan helped the petitioner (who was a young widow of 20) in all her litigation with her mother-in-law. In paragraph (vi) the counter-petitioner says: "Sellappa Goundan prosecuted the suit with Thylaiyammal as the plaintiff and carried on litigation in three Courts, all of which ended in favour of Sellappa Goundan"--as if Sellappa Goundan was then the real owner and plaintiff was merely a benamidar. In view of the fact that the title at that time was in the plaintiff and is still in her and all that the counter-petitioner could plead in paragraph (v) is a bare agreement without any conveyance, the suggestion that the title was in Sellappa Goundan is so absurd that it only shows the extravagant position taken up by the counter-petitioner. All the documentary evidence from the termination of the litigation up to the present disputes was in favour of the petitioner. The Magistrate says: "The counter-petitioners readily admit that the pattas and kist receipts are also in the name of the petitioner. There is, therefore, no doubt as to the legal right of petitioner to the lands. But the question is, whether petitioner was actually enjoying the lands." There is a good deal of fallacy in these statements. The Magistrate seems to think that the kist receipts and pattas are evidence only of legal right and not of possession, They are strong evidence of possession which a Court cannot lightly disregard. Again, by the use of the words "actual enjoyment" it is clear that the Magistrate's notions of possession (in law) are not quite correct. The Magistrate seems to think that a person must deal with the tenants personally or collect the rents from them personally or periodically visit or walk on the land if the dealings are to constitute possession in law. He later on says that Sellappa Goundan "must have enjoyed the lands keeping the petitioner under his protection." According to the learned Magistrate, if A. (a female, who is the owner of certain lands,) and B, a friendly male who helps her, live together and enjoy the income of the lands and B has all the dealings with the tenants--such as negotiating the lease with a tenant, getting him to execute the muchilika in A's name and collects the produce and brings it to the house to be enjoyed by both, A has no possession, whereas the correct view is that in such cases, A is the person in actual enjoyment and legal possession and B is merely a servant. B has not even an agent's possession. On the view of the Magistrate, no Zamindar who has a large estate consisting of several divisions and who manages each division through a Samuddar and a Tanadar and no big landholder who, being at a distance, manages his lands through his clerk, is in possession of his lands. It is the Tanadar of the Zemindar or the clerk of the landholder that is in possession and if the Tanadar or the clerk chooses to rebel against the master, his possession must be protected under Section 145; It is far better that Section 145 does not exist than that such use should be made of it or such use should not be interfered with by a High Court. If the Magistrate had clearly recorded his findings as to the facts, I would have at once interfered in favour of the petitioner. But there is no finding beyond the sentence: "In the nature of things, he must have enjoyed the lands, keeping petitioner under his protection"--a statement based on some speculative, consideration which does not commend itself to me as probable or even plausible. He first-thinks that Senappa Goundan must have helped the petitioner. The next step is, he would not have allowed the petitioner to enjoy all the lands and keep quiet. If this meant that he would have claimed some remuneration for the help rendered, one would not quarrel with it. The next step is that lie (Sellappa) must have enjoyed all the lands keeping the petitioner in his protection--a conclusion so perverse that I cannot accept it as a finding. When we find that this conclusion is arrived at after getting rid of the documentary evidence by saying that it relates to the legal right only (which is not correct) and by getting rid of the oral evidence by saying that it is unnecessary to enter into it--why, we are not told,--I am of opinion there is no judgment or finding that any Court can accept.
8. I, therefore, send back the case for a proper finding on the evidence on record and in the light of my remarks as to possession. Costs to abide the result.