Madras High Court
A.G.V. Subramania Iyer And Ors. vs Pudumadan And Ors. on 15 November, 1961
Equivalent citations: (1962)2MLJ150
ORDER Sadasivam, J.
1. The petitioners are respondents in M.C.T.P. No. 28 of 1959 on the file of the Executive First Class Magistrate, Tirunelveli and they are referred to in these-proceedings as the " B Party " . The petition in the lower Court was one under Section 145 of the Code of Criminal Procedure. It arose out of a dispute between the "A" and " B " Parties in respect of some lands. There are eight items of lands as disclosed in the preliminary order under Section 145 (1), Criminal Procedure Code. The extent of the lands in respect of which the dispute between the parties existed is also given in that -order. The learned Executive First Class Magistrate was of the opinion that he could not himself decide as to which of the parties was in possession of the properties in dispute and he therefore referred the question to the District Munsif of Tenkasi, under Section 146 (1), Criminal Procedure Code to decide the question as to which of the parties was in possession of the three disputed lands, since there was no dispute as regards the other five items of properties. The learned District Munsif found that the " A Party " was in possession of the whole extent of the survey numbers of the said three items and not merely the disputed portions in the three items.
2. In pursuance of the said finding the learned Executive First Class Magistrate passed the final order upholding the possession of the "A Party " and directing the " B Party " not to interfere with the same. Hence the " B Party "has come-forward with the present petition.
3. The learned advocate for the respondents-" A Party" relied on the decision in Muthusethurayar v. Lourduswami Odayar : (1958) M.L.J. (Crl) 978 which was followed in Rengammal v. Ramasubbarayalu Reddiar A.I.R. 1960 Mad. 169 in support of his contention that the Revision is not competent. But it is clear from the said decisions that the High Court can revise an order under Section 145, Criminal Procedure Code even though reference had been made to the District Munsif under Section 146 (1), Criminal Procedure Code and that the only thing that the High Court in Revision cannot go into is the correctness or legality or otherwise of the findings of the Civil Court.
4. In view of the said decision cited by the learned Advocate for the respondents, it is not open to the petitioners to canvass the correctness of the order of the learned District Munsif. But it is certainly open to the petitioner to show any illegality committed by the Executive First Class Magistrate. It is true that the final order of the Executive First Class Magistrate is in accordance with the order of the District Munsif. But a final order should be in conformity with the preliminary order under Section 145 (1), Criminal Procedure Code. This final order cannot include properties which were not included in the preliminary order. Even if the Civil Court found on an enquiry that the " A Party " was in possession of a larger extent of properties, that is no ground for making a final order in respect of the properties which did not form the subject-matter of the preliminary order under Section 145 (1), Criminal Procedure Code. The reason is obvious , for, there are two pre-requisites for taking action under Section 145, Criminal Procedure Code, one is dispute about possession of property and another that there is a likelihood of the breach of the peace. It is possible that though a party may be in possession of other extents of property there may not really be any likelihood of a breach of the peace in respect of the same. It follows that a final order cannot be made in respect of properties not covered by the preliminary order. The learned Advocate for the petitioner points out that even the " A Party " did not claim more than 84 cents in S. No. 35 and more than 56 cents in S. No. 121 and hence the said extents alone were made the subject-matter of the preliminary order under Section 145 (1), Criminal Procedure Code. He also pointed out that even in the notice, dated 7th December, 1959, the same extents were mentioned by the petitioners in the lower Court. It could not, therefore, be said that by a mistake a lesser extent was mentioned in the preliminary order under Section 145, Criminal Procedure Code. Even if such a mistake had occurred the proper remedy is to take separate proceedings under Section 145, Criminal Procedure Code and not to extend the scope of the final order beyond the limits of the preliminary order.
5. For the foregoing reasons, the final order under Section 145, Criminal Procedure Code is modified by substituting the extent of these items of properties in dispute in accordance with the preliminary order.
6. Subject to the above modification the Revision Case is dismissed.