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2000 DIGILAW 169 (MAD)

Velayudhan Pillai v. Vasanthakumari

2000-02-08

I.DAVID CHRISTIAN

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ORDER: One Velaydhan Pillai has filed this revision challenging the order passed by the Executive Magistrate i.e., Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District in his Na.Ka.Aa-4/14071/97. The revision petitioner is the respondent in the said proceedings. 2. One Vasanthakumari filed a petition purporting to be under Sec.145, Crl.P.C. before Revenue Divisional Officer, Padmanabhapuram, Kanyakumari district alleging that she is the owner in possession of 14 1/2 cents of land comprised in R.S.No.388/13 of Kollemoode village in Kanyakumari District, that the relevant old Survey Numbers are 1158 and 1159 of Kollemoode village, that the property is a compact area with well defined boundaries on all its four sides, that there are yielding coconut trees, that the petitioner has obtained patta for the said extent and she is paying tax to the Government, that the counter petitioner one Velaydhan Pillai has no title or possession over the said property, that while so, the counter petitioner with the object of forming a road through her property has brought into existence a sale deed without the consent and knowledge of the petitioner on 22.9.1997, that the executant of the sale deed has no title or possession over any area in the property, that the sale deed is not valid and will not confer any right or title to the counter petitioner, that the counter petitioner has no right to form a road though the property of the petitioner, that an attempt to form a road was made by the respondent on 12.9.1997 by engaging some men during night hours, that the petitioner is helpless and therefore she has filed this petition praying for protection as against the acts of the respondent. 3. 3. Velaydhan Pillai, the respondent appeared before the Revenue Divisional Officer and filed a counter contending that the petitioner is not the owner of entire S.No.388/13, that the house of the respondent is also situated in Northern portion of the said survey number, that one Lakshmi Pillai and Chellam Pillai also have their houses in the said Survey numbers, that Kollemoode - Nithiravilai Road is situated just south of R.S.No.388/13, that the respondent and others who have their houses in the North of S.No.388/13 have got access to the road and come to the property from the road through a pathway situated on the western portion of R.S.No.388/13, that pathway is in existence even for the past more than 100 years, that the respondent and other inhabitants have no other pathway to reach their residence, that the respondent has easementary right to use the pathway in the said survey number, that the entire survey number originally belonged to a Nair tarwad, that there is a partition in Nair tarwad in the year 1114 M.E. (1938 A.D.) that a portion of the property was allotted to one Sukumaran Nair, that Sukumaran Nair has surrendered four cents of his land of pathway, that Sukumaran Nair sold the said four cents in favour of the respondent on 22.9.1997, that the petitioner has no right over 4 cents, that the petitioner has filed this petition only with a view to close the pathway thereby denying the right of the respondent and others to make use of the same as pathway, that the respondent is also a sharer in R.S.No.388/13, that there is dispute which has been referred to Civil Court having jurisdiction, that the civil court is seized of the matter, that the Executive Magistrate cannot decide the rights of the parties in respect of immovable properties, and that therefore, the petition filed by Vasanthakumari has no merits and it may be dismissed. 4. The Executive Magistrate, i.e., Revenue Divisional Officer, Padmanabhapuram passed an order dated 28.7.1998 by allowing the petition and stating that the petitioner shall approach Kollemoode police for protection against the respondent in respect of her title and possession in respect of S.No.388/13 of Kollemoode Village. 5. Aggrieved at the said order passed by the Executive Magistrate, the respondent has filed this Revision. 6. Heard both sides. 7. 5. Aggrieved at the said order passed by the Executive Magistrate, the respondent has filed this Revision. 6. Heard both sides. 7. The point for consideration is as to whether the order passed by the Executive Magistrate, Padmanabhapuram is liable to be set aside in this revision? 8.The Point: The petitioner claims right and possession of 14 1/2 cents in R.S.No.388/13 of Kollemoode Village in Padmanabhapuram taluk in Kanyakumari district. The total extent of S.No.13 is more than 50 cents and it is not in dispute that S.No.388/13 belongs to various persons who have all taken sale deeds from the shares of Nair tarwad to whom the property originally belonged. The petitioner also claims to have acquired right to an extent of 14 1/2 cents which is only a portion of a larger extent by virtue of a settlement deed obtained from her mother. Even though it is alleged by the petitioner that the respondent is trying to form a pathway in the survey number, it is not clearly stated that the pathway that is sought to be formed is through her patta property. Moreover, it has been brought to the notice of the Executive Magistrate that dispute is pending among the shares and one Lathika Kumari and another have filed O.S.No.10 of 1998, on the file of the Subordinate Judge, Kuzhithurai, impleading the present petitioner and the respondents, the defendants 1 and 2. A commission has also been taken. The Commissioner has visited the suit property and has submitted a plan wherein it is stated that a well laid out pathway is running through out the length of the survey number from South to North and the persons who have got their residential houses on the North of the survey Number are all having access to their houses only through this pathway from the East West Kollemoode - Nithiravilai Road. 9. The suit filed by the plaintiffs Lathika Kumari and another is for a declaration that they have got fight of passage in the pathway proceeding from south to North cutting across S.No.388/13 and the petitioner and the counter-petitioner are impleaded as defendants on the allegation that they are trying to close the pathway. The existing pathway is also prima facie proved by the report of the Commissioner. The existing pathway is also prima facie proved by the report of the Commissioner. Any how the Executive Magistrate have no jurisdiction or competence to decide with regard to rights of parties of for their claim of possession. Jurisdiction of the Executive Magistrate to interfere in a dispute between the parties will arise only in case of apprehension of breach of peace and men only he can proceed under Sec.145, Crl.P.C. There is absolutely not even allegation of breach of peace and the petitioner herein has only asserted her right to possession and use of 14 1/2 cents in the suit survey number and denial of any right or possession on the part of the counter-petitioner, The Executive Magistrate has no business to decide with regard to question of right or possession in respect of properties. The right claimed by the petitioner or the denial of the same by the respondent is a matter for adjudication by the competent civil court. In fact that persons who claim right and possession in respect of the survey number have filed a suit before the court having jurisdiction impleading the petitioner and the respondent as defendants in the suit and it is alleged that the defendants are trying to close the pathway which is claimed to be in the suit property for the past more than 100 years. 10. So, the question as to whether there is a pathway running from South to North through the entire length of the Survey Number and whether parties have got right to make use of the same are all matters to be decided by a competent civil court and the order of the Executive Magistrate stating that the petitioner has got right and the respondent has no right in the suit property is without any jurisdiction. The Executive Magistrate is not the forum where rights of parties to properties can be decided and the petitioner is wrong in approaching the Executive Magistrate has chosen to adjudicate upon the rights of parties, the order passed by him is liable to be set aside as the order is passed without jurisdiction. I have no hesitation in holding that Revenue Divisional Officer, Padmanabhapuram has passed the order without jurisdiction and it is therefore liable to be set aside. 11. In the result, the revision is allowed and the order dated 28.7.1998 in Na.Ka.As.4/14071/97 is hereby set aside. I have no hesitation in holding that Revenue Divisional Officer, Padmanabhapuram has passed the order without jurisdiction and it is therefore liable to be set aside. 11. In the result, the revision is allowed and the order dated 28.7.1998 in Na.Ka.As.4/14071/97 is hereby set aside. Consequently, Crl.M.P. No.5951 of 1998 is closed.