Karnataka High Court
Sri Vasudeva Rao vs Smt. Shailaja And Ors. on 12 August, 1996
Equivalent citations: ILR1996KAR3632, 1996(7)KARLJ689
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
ORDER B.N. Mallikarjuna, J.
1. Certain lands measuring 10 acres 36 guntas in Sy.No. 29A of Sankanur Village in Yelaburga Taluk, District of Raichur was owned and possessed by one Adavi Rao. He had 3 sons by name Swami Rao, Venkatarao and Hanumantha Rao. It appears at a partition of the family properties, this land was left for the maintenance of Adavi Rao. Adavi Rao died in about the year 1960. Venkat Rao died in about the year 1984 and Hanumantha Rao in the year 1990.
Venkat Rao died leaving behind his widow Indira Bai and son Vasudeva Rao, the revision petitioners before this Court. Hanumantha Rao died leaving behind his widow Krishna Bai and son Raghavendra Rao.
Swami Rao had four daughters and three sons. Swami Rao's case is that he was in enjoyment of this property right from 1954 and in about the year 1984, in a family arrangement settled the property in favour of his daughters viz., kamala, Rangubai and Shailaja, respondents 1 to 3 in the case to the exclusion of their sons, Ananth Rao, Adavi Rao and Krishna Rao. Respondents 1 to 3 in the revision are the daughters of Swami Rao and Respondents 5 to 7 are his sons. Respondent No.4 Raghavendra Rao is the son of Hanumantha Rao.
On an application, mutation was made in the name of the daughters in about the year 1984 and that was questioned by the widows before the Assistant Commissioner in SR.RRT: 55:90-91 and by order dated March 18, 1991, the learned Assistant Commissioner remanded the matter to the Tahsildar with a direction to dispose of the matter in accordance with law and after final decision in the civil suits pending between the parties.
The records would reveal that Indira Bai and Krishna Bai filed a suit at the first instance in the Court of Vacation Judge, Raichur in O.S. 26/90 against Swami Rao for cancellation of the mutation entries and later it came to be transferred to the Court of Munsiff, Yelaburga and registered as O.S. 33/90. An interim order was made under Order 39 Rule 1 and 2 of the Cr.P.C. on an application (II) by the plaintiffs in that suit and against that order Swami Rao preferred Miscellaneous. First Appeal No. 1194/90 before this Court and while disposing of that appeal, on November 15, 1990 the Learned Single Judge observed that on the facts made available, it would be difficult for the Court to say as to who is in actual possession of the land in question and therefore the Court should have appointed a receiver. However, the Learned Single Judge further stated that the plaintiffs therein are entitled to 7 acres 11 guntas and Swami Rao is entitled to 3 acres and 25 guntas and also said that the boundary of the land that should go to Swami Rao shall run from West to East.
Daughters of Swami Rao viz., Kamala, Rangubai and Shailaja brought a suit (O.S.10/91) in the Court of Munsiff, Yelaburga against Hasanappa Myageri, Vasudeva Rao and Raghavendra Rao in respect of the same land for a declaration of their title and for permanent injunction. The defendants appeared, filed their written statement, issues were framed, however, it would appear the defendants did not later adduce any evidence. The Court after considering the evidence of the plaintiffs recorded the finding on each one of the issues and on September 16, 1992 decreed the suit. The defendants therein, one of them being the revision petitioner took up the matter in appeal before the Civil Judge, Raichur in appeal No. RA 52/92 and that appeal came to be dismissed for default and non-prosecution on April 19, 1993. Nothing is seen in the records to indicate that this order is under challenge before any authority.
2. It may also be noted that the suit filed by Indira Bai and Krishna Bai came to be dismissed for default of their appearance and its non-prosecution on June 3, 1991. Their application for setting aside that ex-parte decree also came to be dismissed on August 20, 1991.
3. Things as it stood, Indira Bai filed an affidavit before the Taluka Executive Magistrate Yelaburga wherein she stated that she is in possession of 1/3rd of 10 acres 36 guntas of land and in view of the dispute, there is likely to be breah of peace concerning the land and that it is just and appropriate that the Government take over the custody of the property. A rough sketch of the land said to be in her possession also accompanied the affidavit.
4. Vasudeva Rao, revision petitioner herein also made a similar application praying the Taluka Executive Magistrate to take possession of the land apprehending breach of peace. It is therefore the learned Taluka Executive Magistrate took the case on file in MAG:48:91-92 and after securing the affidavits of one Sanna Erappa Koppad and Hasanappa Myageri proceeded to make the order on October 25, 1991 purporting to be one under Sections 145 and 146 of the Cr.P.C. appointing one B.P. Nagamurthy, Revenue Inspector as receiver of the said property. Vasudeva Rao and Raghavendra Rao, Sons of two brothers viz., Venkat Rao and Hanumantha Rao were arrayed as members of the first party and sons of Swami Rao were arrayed as members of the second party. No other member was made a party to that proceedings.
It is thereafter the members of the second party brought to the notice of the court the pendency of the Civil disputes contending that the property belonged to Swami Rao and he was in enjoyment of the said land from 1954 to 1987 and question of possession in view of the pendency of suits in the Civil Court, cannot be adjudicated by a Criminal Court in proceedings under Section 145 of the Cr.P.C. The learned Taluka Executive Magistrate considering those objections made the order on January 28, 1992 directing that the supervision of the land measuring 10 acres 36 guntas shall be continued by the Government till the disposal of the Civil litigation.
5. Correctness of this order was questioned not by the members of the first party or the second party in the proceedings before the Taluka Executive Magistrate, but by the daughters of Swami Rao in the Court of the District and Sessions Judge at Raichur in Crl. Rev. Ptn. No. 13/92. It is necessary to note that not only the members of the first party, but the members of the second party were also made parties as respondents 1 to 5 besides the State of Karnataka (Respondent No. 6) in the said revision. Respondents 1 to 5 were also represented by an advocate. The learned District Judge after hearing the counsel for the revision petitioner, the Learned Counsel for the respondents 1 to 6, by order dated August 28, 1993 allowed the revision setting aside the order of the Taluka Executive Magistrate dated January 28, 1992 in MAG 48/91-92.
6. The first respondent Vasudeva Rao in the revision before the Learned District and Sessions Judge has now filed this revision calling in question the correctness and the legality of the said order dated August 18, 1993.
7. The Learned Counsel for the revision petitioner contended that the learned Sessions Judge has committed an error in not considering the observation made by this court in Misc. First Appeal No. 1134/1990 arising out of the suit in O.S. 26/90 (registered as OS No. 33/90 in the Court of Munsiff Yelaburga) holding that the revision petitioner's mother is entitled to be in possession of 1/3rd share in the land measuring 10 acres 36 guntas. He further contended that the learned District Judge committed an error in setting aside the order of the Taluka Executive Magistrate and directing him to put the Respondents 1 to 3 (in this revision) in possession of the property in dispute.
The Learned Counsel for the respondents 1 to 3 and 5 to 7 herein contended that a second revision against the order of the learned District Judge is not maintainable, the learned Taluka Executive Magistrate could not have proceeded under Section 145 of the Cr.P.C. when it was brought to his notice that there is already a temporary injunction in favour of one of the parties in a Civil suit by a competent Court. In support of his contention, he relied on a decision of this court in SHANMUKHAPPA FAKKIRAPPA BALLOLLI v. MAHANTAPPA KALLUR, ILR 1978 KAR 1420, and the other in LADIES CORNER v. STATE OF KARNATAKA, .
8. The Learned Counsel for the revision petitioner contended that since the first revision before the District and Sessions Judge, Raichur not being by this revision petitioner, his Revision Petition before this Court calling in question the order of the District Court is maintainable, what is prohibited under Sub-section 3 of Section 397 of the Cr.P.C. is second revision by the same person. In support of his arguments, he invited my attention to the decision of the Supreme Court in DHARAM PAL v. RAMSHRI, .
The main thrust of the arguments of the Learned Counsel for the revision petitioner is that the revision before the District Court is not by the present revision petitioner Vasudeva Rao and therefore this revision is maintainable. I do not find any merit in this argument.
9. Sub-section (1) of Section 397 confers concurrent jurisdiction both on the High Court and the Sessions Court to call for and examine the record of any proceedings before any inferior criminal Court situate within its or within local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order etc. Explanation to Sub-section 1 makes it clear that all the magistrates whether executive or judicial and whether exercising original or appellate jurisdiction shall be inferior to the Sessions Judge for the purpose of this Sub-Section and Section 398 of the Cr.P.C. A dose examination of Section 397 Cr.P.C. clearly make out that the legality or the correctness of the order of an inferior Court can be examined once either by the Court of Sessions or by this Court and at any rate there cannot be a second revision against an order made by the District Judge in revision petition wherein the correctness or the legality of the order of the inferior Court is examined and considered. More so, in a situation as in the case on hand, no second revision would lie when all the persons concerned have been notified, heard and the orders made thereon by the District and Sessions Judge.
Learned Counsel strenuously argued that the revision before the District Court not being by Vasudeva Rao (revision petitioner herein) the revision is maintainable. In Shanmukhappa Fakkirapp'a Ballolli, the Court was considering whether a person at whose instance the District Court calls for and examines the correctness in making the order by an inferior Court is entitled to maintain a revision against that order. But the point or the question whether once a revision has been entertained by the District Court and the correctness of the order is considered, especially after hearing all the parties concerned, whether anyone of those parties before the District Court can again file a revision against that order before this Court under Section 397 Cr.P.C., was not considered since that point was not involved. However, it is held when once the inferior Court calls for the records and examines the correctness of the order etc.; at the instance of a person, this Court cannot in exercise of power under Section 482 Cr.P.C. call for the papers in the said case at the instance of the same person and examine the correctness of the order made in revision by the District Court. That being the position, the decision does not lend any support to the revision petitioner in contending that the first revision not being at this instance, this revision is maintainable in law. The Supreme Court in Dharam Pal v. Ramshri has held that High Court cannot entertain a petition in exercise of this inherent power under Section 482 Cr.P.C. and consider the correctness of the order of the District Court made in exercise of its revisional power under Section 397 Cr.P.C. I, therefore, hold that the present revision by Vasudeva Rao who was the first respondent in the Revision petition before the District Court and who has been heard by the learned District Judge before making the order impugned, is not maintainable in law.
10. This revision can be disposed of on the ground of maintainability itself. But having regard to the history of the case and long drawn proceedings, I would feel it just and appropriate to record finding even on other points urged before me. The learned Taluka Executive Magistrate has made two orders in the case, one on October 25, 1991 purported to be one under Section 145(1) and Section 146 of the Cr.P.C. and the second order on January 28, 1992 saying that the supervision over the land shall continue with the Government till the termination of the civil suits.
11. In view of the narration of facts in detail above, I may straight away say that as on today no civil dispute concerning the land in question is pending in between the parties and the latest order is in RA 52/92 arising out of OS 10/91 and that is on April 1993. The latest order in the matter by the Taluka Executive Magistrate is on January 28, 1992. The suit in O.S. 10/91 was on for declaration and injunction where the Court has decreed holding that the daughters of Swami Rao are entitled to the possession of the property. In such a situation when there is a decree regarding the title and possession by a competent Court, order made by the Executive Magistrate in exercise of power under Section 145 Cr.P.C. stands extinguished, whatever may be the infirmity or the illegality in making those two orders, by the Taluka Executive Magistrate.
12. An order under sub-section 1 of Section 145 is required to be made by the learned Magistrate on being satisfied that a dispute concerning the land is likely to cause breach of peace in the village. Mere dispute in respect of a land does no empower the Magistrate to make an order under Section 145 Cr.P.C. The Learned Magistrate on being satisfied that the dispute is likely to cause breach of peace is required to make an order setting forth the grounds of his being so satisfied and requiring parties to such dispute to attend his Court in person or through pleader on a specified date and put in their written statements. It is also obligatory on the Learned Magistrate to see that the order made under Section 145(1) is displayed or affixed in some conspicuous place at or near the subject of dispute. This is the requirement of Sub-section (3) of Section 145 Cr.P.C. It is not without substance or an empty formality. It is with a view to provide an opportunity to any person interested to put in his appearance on the specified date, file statement and participate in the proceedings.
I make a mention of Sub-section 3 of Section 145 of the Cr.P.C. for the reason that in this case, daughters of Swami Rao approach the Taluka Executive Magistrate on December 11, 1991 with an application wherein they stated that they are in possession of the land by virtue of the family settlement. Despite that application, the Learned Magistrate proceeds to make the order on January 28, 1992 without hearing them and that is not proper.
Whatever that may be, it is clear that the Learned magistrate in making either the first order on October 25, 1991 or the second order on January 28, 1991 has not complied with the mandatory requirements of Section 145(1) of the Cr.P.C. Section 145(1) no doubt empowers the Taluka Executive Magistrate to make an order attaching the property in dispute under certain circumstances only in case of emergency and that is to be spelt out in clear words in the order made at the first instance. But, on a close look at the order dated October 25, 1991, we find neither; it does not say that there was emergency to make the said order without issuing notices to the other members of the party.
13. In the suit filed by Indira Bai and Krishna Bai, O.S. 26/90 (OS 33/90) no doubt there was an injunction order correctness of which was questioned by Swami Rao in Miscellaneous First Appeal and while deciding that appeal, this Court proposed some arrangement. However, it is dear that the arrangement did not demarcate the land in possession of each of the parties by any of the boundaries. It only stated that the land in possession of Swami Rao shall run from west to East. However, that suit came to be dismissed on June 3, 1991. In the meantime, there is also a suit by the daughters of Swami Rao in O.S. 10/91 for declaration of their title and for permanent injuction, that suit is decreed after recording finding on each one of the issues, in appeal filed by Vasudeva Rao and two others (incidentally Vasudeva Rao is the revision petitioner herein) the judgment and decree in the suit are confirmed and the appeal is dismissed. It is not shown that the said judgment is under challenge in second appeal. Thus, the dispute in regard to the land in question has become final and in such a situation the Taluka Executive Magistrate could not have made an order in exercise of power under Section 145 Cr.P.C.
In LADIES CORNER v. STATE OF KARNATAKA a division bench of this Court has clearly stated even when an interim injunction is granted during the pendency of the suit, the Civil Court does come to a prima fade conclusion that a particular party is in possession of that property and in such a situation exercise of power under Section 145 of the Cr.P.C. is inappropriate and if there is apprehension of breach of peace, proper course would be to resort to Section 107 Cr.P.C.
The Learned Counsel for the revision petitioner on the other hand contended that even in such situation the Court can make an order or the order made earlier cannot be withdrawn. He relied on a decision of the Supreme Court in Dharam Pal v. Ramshri in support of his contention. In the said decision the Supreme Court while considering the object and purport of Sections 145 and 146 of the Cr.P.C. has clearly stated that when a Civil Court passes an order of injunction or appoints a receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence, on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of peace, with regard to the subject of dispute. Therefore, I am of the view that his decision also does not lend support to the revision petitioner either on facts or on law.
14. Therefore, viewed from any angle, the order of the District and Sessions Judge dated August 28, 1993 in Criminal Revision Petition 13/92 cannot be disturbed calling it either illegal or irregular. Hence, the revision petitioner fails.
15. In the result, this Revision Petition is dismissed.