Madras High Court
Rathinam vs State By on 10 April, 1985
Crl.O.P.No.539 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 14.07.2022
Delivered On : 29.07.2022
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.539 of 2021
and
Crl.M.P.No.313 of 2021
1. Rathinam
2. Srinivasamurthy ... Petitioners
Vs.
1. State by
Inspector of Police,
District Crime Branch,
Villupuram.
(Crime No.43/2018)
2. Ramalingam ... Respondents
PRAYER: Criminal Original Petition has been filed under Section 482 of
Cr.P.C, praying to call for the records pertaining to C.C.No.173/2019
pending on the file of the learned Judicial Magistrate, Vanur, Villupuram
District and quash the same.
For Petitioner : Mr.R.Rajarathinam
for Mr.M.Rajan
For Respondents : Mr.L.Baskaran
Government Advocate (Crl. Side) for R1
: Mr.Arun Anbumani
for Mr.S.Mohammed uduman for R2
1/20
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.539 of 2021
ORDER
This Petition has been filed to quash the case in C.C.No.173 of 2019 pending on the file of the learned Judicial Magistrate, Vanur, Villupuram District.
2. The learned Counsel for the Petitioners submitted that the Petitioners are arrayed as Accused. After 18 years of purchase of property, the second Respondent viz., Ramalingam had purchased the property from one Mangalakalyani who is none other than the daughter of the original owner viz., Rathinasabapathy. As per the facts involved in this case, the original owner viz., Rathinasabapathy had three wives. Umapathi, son of the first wife viz., Sakkubai; Boopathi, son of the second wife viz., Rajathi; Vasudevan and Mangalakalyani, son and daughter of the third wife viz., Porkillai @ Kullammal. The original owner settled the property in favour of his son from third wife viz., Vasudevan and the daughter of third wife viz., Mangalakalyani claimed the share in the entire properties belonging to his father. Therefore, a partition Suit was filed in the document settlement deed in favour of the said Vasudevan which was sought to be cancelled by Vasudevan himself. The Suit was dismissed by the learned Special Judge, 2/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 Pondicherry. On appeal, the High Court had passed a preliminary decree in A.S.No.85/1977, the relief sought by Vasudevan was granted by way of the preliminary decree and the settlement deed in his favour executed by his father was also cancelled. Therefore, whatever sought by the Vasudevan was granted by the preliminary decree still he sought permission of this Court to file SLP against the Judgment in A.S.No.85/1977. After passing the preliminary decree, the parties approached the Sub Court, Pondicherry by filing I.A.No.2547/1982 in O.S.No.31/1974 seeking final decree. The Petition was pending before the Special Court and the Advocate Commissioner was appointed. The Advocate Commissioner did not file his report. There was no representation for the Respondent in the final decree application. Therefore, the learned Sub Judge, Pondicherry had closed the final decree application on 10.04.1985. On the date of closure of final decree application in I.A.No.2547/1982 in O.S.No.31/1974, there was no decree.
2.1. While the matters stood thus, the parties to the preliminary decree had sold their respective shares infavour of the Petitioners herein, as per the sale deed. Therefore, the entire property vested in the Aurovile Foundation 3/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 and they had been in enjoyment of the property. Mangalakalyani is the sister of Vasudevan and daughter of the original owner viz.,Rathinasabapathy Gounder had executed the sale deed in favour of the defacto complainant herein/Ramalingam.
2.2. The learned Counsel for the Petitioners invited attention of this Court to the sale deed wherein it is stated as follows:
“mjid bjhlh;e;J brd;id cah;ePjpkd;wj;jpy;
nky;KiwaPl;L tHf;F vz;/85/ 1977-d;goa[k; eilbgw;w tHf;Ffspy; tH';fg;gl;l jPh;;g;gpd;go fpilf;fg; bgw;w brhj;Jf;fisg; bghUj;Jk; nkw;fz;l tHf;Ffis mDrhpj;J v';fSf;Fs; kPz;Lk; g[Jr;nrhp gphpd;rpgy; rg; nfhh;l;oy; rkhjhd cld;gof;if kD vz;/2547/ 1982-d;go vdf;F fpilf;fg; bgw;w brhj;jhFk;/” As per the final decree passed, based on the compromise arrived between the disputing parties to the partition Suit, the property in Survey No.374/1 (Old No.372/5) 2.07 acres and S.No.368/6 (Old No.366/14) 0.44 cents in Irumbai Village, Vanur Taluk, Villupuram District is conveyed to Ramalingam. The said Ramalingam had known all the developments but under the guise of sale deed, he had caused grabbing of land from the 4/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 owners who had already sold the property to the Petitioners herein. Based on the said sale deed, he had preferred a Complaint as though the Petitioners had committed the land grabbing. Based on the complaint of the second Respondent, the first Respondent had registered a case in FIR in Cr. No.43/2018 and conducted the investigation. After the completion of investigation, laid the final report. The final report is taken cognizance by the learned Judicial Magistrate, Vanur in C.C.No.173/2019 under Sections 423, 467, 468, 471 of IPC and 82(a) of Registration Act, 1908.
2.3. In the light of the Judgment in A.S.No.85 of 77, the Appeal having been allowed. The preliminary decree already passed by the learned Additional Subordinate Judge, Pondichery in O.S.No.31 of 74 having been set aside, finding as “In the result the appeal is allowed, the Judgment and decree of the court below are set aside and there will be a preliminary decree for partition of 1/4 th share in A and ¼ share in B schedule properties.
Past and future mesne profits will be determined in separate appropriate proceedings. The plaintiff will be entitled to costs throughout.” 5/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 2.4. The Advocate Commissioner's report is available in accordance with the final decree. The Order passed by the learned Principal Subordinate Judge, Pondicherry in I.A.No.2547/82 in O.S.No.31/74 dated 10.04.1985 stating as “Today when the petition came up for hearing, commissioner not filed sketch report. Petitioner is absent. No memo filed by petitioner for delay in report. Petition is closed at this stage.” 2.5. The decreetal order passed by the learned Principal Subordinate Judge, Pondicherry in I.A.No.2547/82 in O.S.No.31/74 dated 10.04.1985 stating as “This is a petition filed under Order 26 Rule 13 r/w. Section 151 of C.P.C. Praying the court for final decree by appointing an Advocate Commissioner to effect division by meets and bounds of the A and B schedule properties as per preliminary decree dt. 24.2.82 passed by High Court and to allot 1/4 th share in A schedule property and 1/3 rd share in the B schedule property to the petitioner, to direct the advocate commissioner to conduct enquiry as to the past mesne profits and to determine the same under separate proceedings of under Order 20 Rule 12 C.P.C and for cost.” 2.6. The recital in the sale deed vide Document No.881/2017 dated 05.05.2017 executed by Mangalakalyani is in favour of the defacto Complainant/Ramalingam for the entire properties, ignoring the preliminary 6/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 decree and final decree. The final decree having not yet passed. As per the Order of the learned Sub Judge, Pondicherry in I.A.No. 2547/82 in O.S.No.31/74 dated 10.04.1985 the recitals in the sale deed by Mangalakalyani in favour of Ramalingam is found unacceptable in the eyes of law. Particularly, when other sharers had sold their undivided share in the year 1989 and 2003 in favour of the Petitioners herein and after a very long time, the sale deed had been executed by Mangalakalyani ignoring the sale by other sharers which had been mutated in the revenue records and in the encumbrance certificate. The filing of the charge sheet merely based on the complaint of Ramalingam is found to be converting a civil dispute into a criminal dispute under the guise of, “land grabbing”. Therefore, as rightly pointed out by the learned Counsel for the Petitioners, this is a fit case for quashing the proceedings in the light of the guidelines in the reported rulings in 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 in the case of State of Haryana and others Vs. Bhajanlal and others.
2.7. The learned Counsel for the Petitioners invited the attention of this Court to the reported ruling of the Hon'ble Supreme Court in (2009) 3 7/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 SCC (Cri) 929 in the case of Mohammed Ibrahim and others vs. State of Bihar and another wherein it is clearly stated that when there are rival claims between the parties to the civil dispute that cannot be considered as a criminal case. The attempt of one of the parties in converting the civil litigation into a criminal litigation cannot be entertained. Therefore, he sought to quash the charge sheet.
3. The learned Counsel for the second Respondent submitted that Mangalakalyani had resisted the attempt of the Petitioners to purchase the property in Survey Nos.374/1 (Old No.372/5) and 368/6 (Old No.366/14) in the year 2017. Subsequently, the Petitioners herein who are knowing all things had got a sale deed from the parties to the civil dispute. Mangalakalyani had executed the sale deed in favour of Respondent – 2, she had clearly stated that after the compromise in the final decree, the entire property was vested in her. Therefore, she is selling the property to the second Respondent. While matter stood thus, the Petitioners herein had disturbed the peaceful possession and enjoyment of the second Respondent. Therefore, the second Respondent had sought legal action by filing complaint against the Petitioners and others. The investigation proceeded 8/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 and the materials collected in laying the final report.
4. It is the submission of the learned Counsel for the Petitioners that as per the reported ruling cited by the learned Counsel for the Respondent, the complaint preferred by the second Respondent is maintainable. Once the dispute between the parties regarding civil dispute, the Criminal Court cannot consider the case arising out of civil litigation. It is not a fit case before this Court.
5. The learned Counsel for the second Respondent sought to dismiss this Petition as what had been agitated by the learned Counsel for the Petitioners is to be tried by Criminal Court. Only during the appreciation of evidence, the claim made by whom is to be accepted and maintainable could be considered by the trial Court and not at this stage, this Court exercising discretion under Section 482 of Cr.P.C.,
6. The learned Government Advocate (Crl. Side) vehemently objected to the line of the argument of the learned Counsel for the Petitioners seeking to quash the Chargesheet in C.C.No.173/2019 on the file of the learned 9/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 Judicial Magistrate, Vanur. Also he submitted that 11 witnesses had been examined and the statements had been recorded. There are totally six Accused in this case and the Petitioners herein/Accused 2 & 5 had been granted stay before this Court during the pendency of the trial. The case is posted for trial before the learned Judicial Magistrate. At this stage, seeking to quash the charge sheet is not maintainable.
6.1. The learned Government Advocate (Crl. Side) also submitted that the charge sheet cannot be quashed leniently and the extraordinary powers of this Court under Section 482 of Cr.P.C., used sparingly only if there are materials in the charge sheet for the offences. Here, in this case, there are sufficient materials to incriminate the Petitioners. Therefore, it is subjected to trial and this Court exercising under Section 482 of Cr.P.C., cannot quash the charge sheet in C.C.No.173 of 2019.
7. On consideration of the rival submission, it is found that the Petitioners are the purchaser of the property from the original legal heir of Rathinasabapathi. The second Respondent had purchased the property from one of the legal heirs viz., Mangalakalyani including her share beyond her 10/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 claim and based on that sale deed, he is attempting to lodge a criminal complaint against the Petitioners herein. The argument of the learned Counsel for the second Respondent is that only the Petitioners instigate the legal heirs to sell the property whereas Mangalakalyani had resisted the attempt of the Petitioners. Under those circumstances, the said Mangalakalyani executed the sale deed by other legal heirs. As though entire properties vested as per the compromise arrived between the parties to the dispute in final decree application in I.A.No.2547/1982 in O.S.No.31/1974 before the learned Sub Judge, Pondicherry is found acceptable in the circumstances of this case.
7.1. When the parties to the dispute had agreed to settle among themselves, the Court cannot insist the party to do it in this particular way. After passing the preliminary decree, it is for the parties concerned to arrive at a settlement even though the final decree application is pending before the Court. They can arrange among themselves, they can settle among themselves. That is between the members of the family of Rathinasabapathy. The Court cannot insist particular order of partition. Therefore, the learned Counsel for the second Respondent/defacto complainant vehemently 11/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 objected to quash the FIR.
7.2. Considering the rival submissions and on perusal of the records and the Judgment cited, this Court is of the opinion that the Petitioner herein/second Respondent had purchased the property from the legal heirs of Rathinasabapthy. The legal heirs of Rathinasabapathy had sold their undivided share to Rathinam/first Petitioner herein whereas Mangalakalyani did not sell her share. She had executed the sale deed in favour of Ramalingam stating that there was an amicable settlement in the final decree application.
7.3. As rightly pointed out by the learned Counsel for the Petitioners that if the final decree is pending before the Court which ought to have recorded the settlement arrived and terms of the settlement could have passed decree based on the settlement arrived in the Petition. They had not done so, the final decree application is closed due to the lack of action of the Advocate Commissioner and the learned Counsel in the final decree application. As rightly pointed out by the learned counsel for the Petitioners that without obtaining decree in her favour, the conduct of the vendor of the Respondent viz., Mangalakalyani in executing sale deed for 12/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 the properties for which beyond her share, the share of the minors also had been sold. When both the parties viz., purchaser and vendor were aware of the proceedings, the execution of the sale deed in favour of the second Respondent by Mangalakalyani is found unacceptable and unreasonable in the light of the decision of the Hon'ble Supreme Court and Hon'ble High Court regarding the final decree application. Here in this case, Mangalakalyani claims that she had arrived at settlement with other shares and a compromise decree was passed. No such compromise decree is available in the records. In the light of the above, the contention of the learned counsel for the Petitioners is found justified. The vehement objection of the learned Government Advocate (Crl. Side) and the objection of the learned Counsel for the defacto complainant/R2 is found without any basis considering the civil nature of the dispute involved. It need not be under the criminal act. It is found that the Court has to ensure peaceful amicable settlement of dispute and the civil dispute should not be converted into a criminal case as per the reported ruling of the Hon'ble Supreme Court in (2009) 3 SCC (Cri) 929 in the case of Mohammed Ibrahim and others Vs. State of Bihar and another.
13/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 7.4. In the light of the submission of the learned Counsel for the Petitioners and on perusal of the Judgment cited by the learned Counsel for the second Respondent, the submission of the learned counsel for the second Respondent is rejected as it is misconceived. Therefore, based on the ruling cited by both parties, this is a fit case for quashing charge sheet. The subject matter referred in the preliminary decree and based on preliminary decree instead of proceeding with final decree, the final decree application was closed by the trial Court. When there are no final decree available in favour of Kalyani or Mangalakalyani, the act of Mangalakalyani executing sale deed in favour of the second Respondent cannot at all be accepted as valid in law. She does not have right to execute sale deed for the entire property to the second Respondent beyond her undivided share.
7.5. The learned Counsel for the second Respondent relied on the ruling of the Hon'ble Supreme Court reported in (2017) 9 SCC 641 in the case of Prabatbhai Aahir @ Parbatbhai Bhimsinbhai Karmur and Others Vs. State of Gujarat and another. In this case, the sale deed was executed in favour of the second Petitioner as per the sale deed dated 16.04.2003 and 14/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 registered with the Sub Registrar, Vanur for the same property. The Complaint had been lodged by the second Respondent in the year 2018. The Complaint proceeds as though the Complainant had obtained sale deed for the entire property that was in the possession and enjoyment of the father of Mangalakalyani which is not so. The sharers had individually sold their sharers to the Petitioners herein. The encumbrance certificate also reflects in the name of Auroville foundation and that be the case registering the case based on the Complaint ignoring the prior sale deed and it is mutation in the revenue records for the properties and the compromise alleged to have reached between Mangalakalyani and other co-sharers which is not reflected in any final decree. Therefore, the claim of the alleged Complainant viz., Ramalingam accusing the Petitioner for the land grabbing cannot at all be considered as criminal offence. It is a civil dispute regarding claim of the property from the legal heirs of Rathinasabapathy is a dipute to be resolved in Civil Court and cannot be converted into a criminal case for the alleged offences and land grabbing. Therefore, the ruling cited by the learned Counsel for the second Respondent that the High Court exercising inherrent powers under Section 482 of Cr.P.C., should consider to whether carried out quashment. In the opinion of this court, this Court had considered the same 15/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 in the light of the enunciated principle by the Hon'ble Supreme Court. It is not infavour of the second Respondent/Complainant. The said ruling is infavour of the Petitioners.
7.6. Similarly, the second Ruling cited by the learned Counsel for the second Respondent in (2020) 14 SCC 552 in the case of K.Jagadish Vs. Udaya Kumar G.S. And another. Here, the subject matter of the dispute is purely civil and it is converted as a criminal offence. Long period after execution of sale deed in the name of the first Petitioner is of the year 1989 and the second Petitioner is of the year 2003. Long after both the sale deeds attributing motive under the guise of Land Grabbing and converting the civil dispute into a criminal case, long after execution of the sale deed. Even though the claim of the defacto Complainant/R-2 having purchased the property from Mangalakalyani ignoring the sale deed executed by other sharers. In the year 1989 and 2003 in favour of the Petitioners herein is also not maintainable before any Civil Court. Therefore, the conversion of civil dispute into a criminal dispute on the basis of an alleged sale deed executed by a person who claims to have settle with her co-sharers amicable settlement for the properties that were sold with undivided share is found 16/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 unacceptable in the principles governing transfer of property with regard to undivided share. Particularly, they had invoked the powers of the Court regarding determination of their share in the joint family property. Subsequently final decree application filed and not prosecuted. Therefore, without invoking powers of the Court claiming a false sale deed infavour of the second Respondent from Mangalakalyani whose claim is found unacceptable in the light of the documents furnished before this Court by the Petitioners who had obtained sale deed who had approached the Court for determination of their shares. In the light of the Civil Court Order and the sale deed the attempt of the second Respondent in converting the dispute into a criminal dispute cannot at all be accepted. Therefore, the ruling cited by the learned Counsel for the second Respondent that the Civil Court and Criminal Court proceedings can go simultaneously cannot be accepted in the light of the facts and circumstances of this particular case. The case in the reported ruling of the (2020) 14 SCC 552 in the case of K.Jagadish Vs. Udaya Kumar G.S. And another, the criminal case was instituted early subsequently, the parties to the criminal proceedings instituted civil suit. Therefore, the Hon'ble Supreme Court has held that both the proceedings shall proceed simultaneously and refused to quash the criminal complaint. 17/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 Here, it is the other way at the earliest point of time the parties to the civil dispute approached the civil Court and obtained preliminary decree and undivided share sold to the Petitioners herein. It is for the Petitioners herein to seek final decree from the Court concerned. While so, the claim of the second Respondent having obtained the sale deed from Mangalakalyani who is alleged to have executed a sale deed governing their sale executed in favour of the Petitioners herein by the other co-sharers for the undivided share cannot at all be accepted by any Court of law. In the light of the above discussion, the said rulings relied on by the learned Counsel for the second Respondent is rejected.
In the result, this Criminal Original Petition is allowed. The final report filed by the Respondent and pending as case in C.C.No.173/2019 on the file of the learned Judicial Magistrate, Vanur, Villupuram District is quashed only as against the Petitioners. The Learned Judicial Magistrate No.I, Vanur, is directed to proceed with the trial against the other Accused and dispose of the case within a period of three months from the date of receipt of a copy of this order or from the date of uploading 18/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 this order on the website of this Court. Consequently, connected Miscellaneous Petition is closed.
29.07.2022 dh Index : Yes / No Internet : Yes / No To
1. The Judicial Magistrate, Vanur, Villupuram District.
2. The Inspector of Police, District Crime Branch, Villupuram.
3. The Public Prosecutor, High Court, Madras.
19/20 https://www.mhc.tn.gov.in/judis Crl.O.P.No.539 of 2021 SATHI KUMAR SUKUMARA KURUP., J.
dh Pre-delivery order made in Crl.O.P.No.539 of 2021 29.07.2022 20/20 https://www.mhc.tn.gov.in/judis