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1987 DIGILAW 154 (KER)

st. stephens church v. itty thomas

1987-03-26

PADMANABHAN

body1987
Judgment :- 1. Revision petitioner church is A-party in M.C. No. 58 of 1981, a proceeding initiated by the Sub Divisional Magistrate, Alleppey under S.145 of the Code of Criminal Procedure on 30-7-1981. It is concerning 2.43 acres of paddy field comprised in Sy. Nos. 314/1-F, 314/1-A, 313/2 and 357/1 of Veliyanadu village. 2. Admittedly this property belongs in jenmom to the revision petitioner church. So also there is no dispute regarding the fact that it was leased out from the church in favour of the father of the respondent who was B-party in the proceedings before the Magistrate. The father of the respondent admittedly died a few years ago. The case of the petitioner is that subsequent to the death of the father of the respondent the church resumed possession and auctioned the same on lease to a stranger for one year. The further case is that thereafter the property is lying fallow. It was on the application of A-party alleging that the respondent is attempting to take forcible possession resulting in the likelihood of imminent breach of peace that the learned sub-divisional Magistrate initiated proceedings under S.145 of the Criminal Procedure Code. 3. In the said proceedings the learned Magistrate appointed receiver under S.146 and he was put in possession also. Challenging that order the respondent filed Crl. RP No. 422 of 1981 before this Court. Since the receiver had already taken possession of the property this Court did not go into the merits of the matter. The revision was disposed of by order dated 4-3-1982 directing the learned Magistrate to proceed with the enquiry and complete it within one month after considering the contentions of B-party on the merits. So also the Magistrate was directed to consider the bar of S.29A of the Kerala Land Reforms Act. That contention was raised by the respondent for the first time before this Court. 4. Even though the direction of this Court was to dispose of the proceedings within a month, the matter was dragged for a pretty long time. Meanwhile the respondent pressed into service his claim based on S.29-A of the Land Reforms Act before the learned Magistrate. That contention was considered as a preliminary issue and disposed of by order dt. 5-3-1983 rejecting that contention. Against that order the respondent filed Crl RP No. 27 of 1983 before the Sessions Court, Alleppey. Meanwhile the respondent pressed into service his claim based on S.29-A of the Land Reforms Act before the learned Magistrate. That contention was considered as a preliminary issue and disposed of by order dt. 5-3-1983 rejecting that contention. Against that order the respondent filed Crl RP No. 27 of 1983 before the Sessions Court, Alleppey. The Additional Sessions judge, by order dated 12-7-1985, revised the order of the Executive Magistrate and held that S.29A of the Kerala Land Reforms Act is a bar to the initiation of proceedings under S.145 of the Code and therefore the initiation of the proceedings under S.145 was without jurisdiction. The order of the Magistrate was therefore set aside. The present revision petition is filed by A-party against that order. 5. I have earlier stated that the receiver appointed by the Executive Magistrate is still continuing in possession. The respondent did not move the Land Tribunal by an application in time under S.72B for purchase of the right, title and interest of the landlord. After the expiry of the period he moved the Land Tribunal by an application and the Land Tribunal initiated suo mote proceedings in S.M. 37 of 1981. The matter was contested by the revision petitioner, the Land Tribunal dropped the proceedings by order dated 17-7-1984 on the ground that the respondent was not able to prove possession. Against that order the respondent filed A.A.118 of 1984 before the Land Reforms Appellate Authority. The appeal also happened to be dismissed by order dated 21-4-1986. Against the said order the respondent filed CRP No. 1749 of 1986 before this Court and admittedly the revision is even now pending. 6. The question for consideration at present is only whether this is a case in which the provisions of S.29A of the Kerala Land Reforms Act is applicable. Against the said order the respondent filed CRP No. 1749 of 1986 before this Court and admittedly the revision is even now pending. 6. The question for consideration at present is only whether this is a case in which the provisions of S.29A of the Kerala Land Reforms Act is applicable. S.29A reads as follows: "(1) Where a person claiming to be a tenant applies for the preparation of a record of rights or for the determination of the fair rent or for the purchase of the right, title and interest of the landowner and the intermediaries, if any, in respect of the land cultivated by him, then, notwithstanding anything contained in any other law, no Magistrate shall have jurisdiction under Chap.12 of the Code of Criminal Procedure 1898, in respect of a dispute between that person and any other person claiming to be in possession of that land relating to that land, pending disposal of the application." Since the section starts with the words "Where a person claiming to be a tenant applies for the preparation of a record of rights or for the determination of the fair rent or for purchase of the right, title and interest of the landowner and the intermediaries, if any"' It was argued on behalf of the revision petitioner that the applicability of the section will arise only when there is a proceeding on the application of the tenant. Since the suo mote proceedings was not initiated on the application of the respondent it was contended that S.29A has no application and it will not bar initiation of the proceedings by the Magistrate under S.145 of the Code. 7. I do not think that the argument is sound. What was intended by the section is not a technical distinction between proceeding initiated on the application of the tenant or initiated suo motu by the Land Tribunal. What the section intended was that when the matter is pending adjudication before the Land Tribunal in an appropriate proceeding, the Executive Magistrate should not be allowed to initiate action under S.145 of the Criminal Procedure Code, on the ground that.there is a dispute which is likely to result in breach of peace. What the section intended was that when the matter is pending adjudication before the Land Tribunal in an appropriate proceeding, the Executive Magistrate should not be allowed to initiate action under S.145 of the Criminal Procedure Code, on the ground that.there is a dispute which is likely to result in breach of peace. In other words, when the question whether a person is a cultivating tenant or not is pending adjudication before a competent forum, the legislature wanted to oust the jurisdiction of the Magistrate in relation to the subject-matter under Chap.12 of the Criminal Procedure Code, Therefore I am of opinion that the learned Sessions Judge was right in this respect. 8. It necessarily follows that the initiation of proceedings under S.145 of the Code by the Magistrate in such a situation was without jurisdiction. The receiver appointed by the Magistrate is continuing in possession only on account of the observation of this Court in the order dated 4-3-1982 in Crl. RP No. 422 of 1981, Since the proceedings initiated by the Magistrate was found without jurisdiction, normally the receivership also ought to have been terminated, but the rights of parties will depend upon the decision of this Court in CRP. No. 1749 of 1986. The party who comes out successful in that revision petition will have to get possession of the property. For that purpose alone the receiver will continue in possession. As soon as CRP No. 1749 of 1986 is disposed of the receiver will be bound to surrender possession of the property to the successful party. Subject to what is stated above the Crl. RP is dismissed. Issue carbon copy on usual terms. Dismissed.