Research › Browse › Judgment

Kerala High Court · body

1977 DIGILAW 233 (KER)

RAVINDRAN v. RUGMINI AMMA

1977-08-19

P.JANAKI AMMA

body1977
Judgment :- 1. The petitioner seeks to set aside the order dated 10th December, 1976 of the Sub Divisional Magistrate, Palai in M. C No. 3 of 1976. The petitioner is the B party No.1 in the above case. 2. The subject-matter of the dispute is the tank "Elikulam" situated in the south-western corner of the Thavidazhathu purayidom, in survey No. 16/10 of Vaikom village. The water in the tank was considered as holy and as having curative power in the case of rat poison. The A party in the proceedings claimed that the tank was owned and was being administered by the Thavidazhathu tarwad which they represented and the tarwad used to charge persons who made use of the water thereof. The B party consisting of the Sreekaryam, Santhikaran and the Kazhakakkaran of the Thirumani Venkitapuram temple situated closely asserted right over the tank as agents of the temple. While the disputes were pending, the A party filed the suit, O. S.481 of 1975 in the Munsiff's Court, Vaikom and got an interim injunction against the B party restraining them from interfering with the management of the tank by the A party. The B party claimed absolute right over the tank as an adjunct to the Thirumani Venkitapuram temple and contended that there is a special "vazhipadu" in the temple by name "Elivisha Vazhipadu" Devotees used to pay fees for this "Vazhipadu", obtain receipts and use the water of the tank, a part of the Vazhipadu. The contention of the B party was that the mother of A party No.1 was a "Kazhakakkari,"of the temple and as a Kazhakakkarishe used to provide flower garlands to the persons who perform vazhipadu in the temple and for that service she was being paid "Dakshina". The B party contended that apart from this 'Dakshina", the A party was not entitled to any right in the tank. 3. The injunction was vacated on 17-1-1976 after hearing both parties. The suit O. S.481 of 1975 was dismissed on 2711 76 on the basis of a petition for permission to withdraw it in view of another suit already filed. 4. 3. The injunction was vacated on 17-1-1976 after hearing both parties. The suit O. S.481 of 1975 was dismissed on 2711 76 on the basis of a petition for permission to withdraw it in view of another suit already filed. 4. Subsequent to the dismissal of the petition for injunction, on 17-2-1976 the Sub Divisional Magistrate initiated proceeding under S.145 Cr.P.C and as the Magistrate was satisfied that the case was one of emergency, orders were passed on the same day placing the tank under attachment The Village Officer, Vaikom was appointed receiver pending final decision of the dispute. 5. The Sub Divisional Magistrate recorded the evidence of the parties and relying on what he called as admissions of B party No.1 held on 10th December, 1976 that the tank was in the passes ion of the A party but that the devotees who performed the "Elivisha Vaztiipad" in the temple had the right of using the water from the tank. The operative portion of the order is as follows: "Ia view of the above finding, it is hereby ordered that the possession of the tank will be given to A party, but A party will continue to permit all devotees who come with a receipt showing the payment of "Elivisha Vazhipad" in the Temple to take water from the tank irrespective of the compensation' A" party is bound to give water to all the devotees, who bring the -'Elivisha Vazhipad" receipts of the temple without insisting on compensation. The A party is also at liberty to permit any person who come direct to draw water. But in such cases the A party can insist on compensation before permitting the party to draw water. I hereby order that the attachment of the property will be lifted and the tank will be given possession to A party No.1 and she will manage the tank as directed above. I also order that the amount collected by the Village officer, Vaikom so far from the parties who used water from the tank be given to A party No. 1. The cost incurred by the village officer in constructing the fence will be realised from A party No. 1." 6. The petitioner challenges the correctness of the above order on the merits and also its legality. The cost incurred by the village officer in constructing the fence will be realised from A party No. 1." 6. The petitioner challenges the correctness of the above order on the merits and also its legality. The contention put forward is that having satisfied himself that the case was one of emergency and having attached the property, the Sub Divisional Magistrate should not have proceeded with the case or decided who was in possession of the property on the date of the preliminary order and should have left the rights of the parties to be decided by a competent Court. 7. The objections appear to be well-founded. The learned Sub Divisional Magistrate omitted to note the changes effected recently in S.145 and 146 of the Code of Criminal Procedure in relation to attachment of the subject of dispute. Prior to the revision of the Code in 1973, S.145 (4) related to enquiry as to possession and contained a proviso which read: "Provided also that, if the Magistrate considers the case as one of emergency, he may at any time attach the subject of dispute, pending his decision under this section." S 146 (1) Cr.P.C., as it stood then was as follows: "If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub-section (4) of S.145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him." Section 145 (1B) directed that on receipt of the finding of the Civil Court, the Magistrate should dispose of the proceeding under S.145 in conformity with the decision of the Civil Court. 8. 8. It is evident from the above provision that the Code then empowered the Magistrate to attach properties both in cases of emergency pending decision by himself on the question of possession and in cases where he formed an opinion that none of the parties was in possession of the subject of dispute or where he was unable to decide which of the parties was in possession thereof at the relevant date. 9. In the revised Code of 1973, the proviso to S.145 (4) has been omitted and S 146 (1) has been recast as follows: "If the Magistrate at any time after making the order under sub-section (1) of S.145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in S.145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof-. Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute " 10. It follows that under this new Code the Magistrate has no power to attach the property in dispute pending decision by himself as to who was in possession on the date of the preliminary order. If he considers the case to be one of emergency, he may attach the property so that a competent Court may determine the rights of the parties and the person entitled to possession of the subject of dispute. This is evident from the fact that S.146(1) places cases of emergency on a par with cases where the Magistrate decides that none of the parties was in possession and cases where he is unable to satisfy himself as to which of them was in possession of the subject of dispute on the relevant date. If he attaches the property holding that there is a case of emergency and appoints a Receiver, he need not proceed with the enquiry. If he attaches the property holding that there is a case of emergency and appoints a Receiver, he need not proceed with the enquiry. The order of attachment and appointment of Receiver will continue till such time as he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute or till a competent Court determines the rights of parties or who is entitled to the possession of the property. In the event of a receiver being appointed by a Civil Court the Magistrate may direct the receiver appointed by him to hand over the possession of the subject of dispute to the Receiver so appointed. 11. An interpretation on the above line has been given to S.146(1) Cr. P.C., by single judges of the High Courts of Allahabad, Patna and Rajasthan, in Chandi Prasad v. Om Prakash (1976 Crl.L.J. 209), Md. Muslehuddin v. Md. Salahuddin (1976 Crl L.J. 1150) and Mansukh Ram v. State (1977 Crl. L. J. 563) respectively and also by a Division Bench of the Orissa High Court in Dandapani v. Madan Mohan (1976 Crl. Li. 2014). 12. In the light of the provisions referred to above, the Sub Divisional Magistrate was not expected to conduct an enquiry regarding the possession of the subject of dispute after the attachment of the property and the appointment of the Receiver thereto. In the instant case, the materials placed would show that a suit has been filed for declaration of rights by A party. The learned Sub Divisional Magistrate should have allowed the attachment to continue till the Civil Court determines the rights of parties or he could have continued the proceedings in order to satisfy himself that there is no longer any likelihood of breach of the peace with regard to the property in dispute. In other words, the finding of the Sub Divisional Magistrate that A party was in possession of the property, the direction issued with regard to the management thereof, the withdrawal of the attachment and the termination of the Receivership are not warranted by the provisions of law referred to above. The order dated 10th of December, 1976 passed by the Sub Divisional Magistrate, Palai in M. C. 3 of 1976 including the order terminating the attachment and Receivership will stand set aside. The order dated 10th of December, 1976 passed by the Sub Divisional Magistrate, Palai in M. C. 3 of 1976 including the order terminating the attachment and Receivership will stand set aside. The Sub Divisional Magistrate is directed not to proceed with the case further under S.145 except in order to find out whether conditions exist for the withdrawal of the attachment under proviso to S.146 (1) Cr. P. C. In case it is found that there is no longer any likelihood of breach of the peace, he may withdraw the attachment. The Receiver appointed by him may also continue to be in possession until the attachment is raised or until a Civil Court appoints a Receiver. In the latter contingency, the Magistrate may act according to S.146 (2) Cr. P. C. The petition is allowed as stated above.