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2001 DIGILAW 320 (MAD)

Murugan alias Murugasamy Pillai v. Vedapriya

2001-03-12

A.RAMAMURTHI

body2001
ORDER Petitioners/‘A’ party in M.C.No.23 of 2000 on the file of Sub Divisional Magistrate, Pondicherry have preferred the revision aggrieved against the orders dated 4.10.2000. 2. The case in brief is as follows: The Station House Officer, Lawspet Police Station, laid information before the Sub Divisional Magistrate at Pondicherry. He perused the records placed before him and he was satisfied that the dispute was likely to cause breach of peace between A party and B party concerning the right and possession of schedule mentioned property. It was likely to cause imminent breach of peace at Lawspet Police Station Limit. They were duly called upon to state their claims as to the fact of the actual possession of the disputed property. The case was taken on record on 13.3.2000. Ample opportunities were given to all the parties to adduce evidence and file documents. ‘A’ party claimed that they are the absolute owners and enjoyers of the property. The disputed property was originally an agricultural land and in course of time, the cultivation was not possible due to lack of irrigation. Now, the ‘B’ party attempted to trespass into the disputed area for the purpose of putting up construction. 3. ‘B’ party claimed that this property originally belonged to one Vazhumuni Gounder, Kannaiya Gounder and Duraikannu Gounder and they had sold the property in favour of Murugesa Gounder and Subramanian Gounder in 1946. Murugesa Gounder executed a settlement deed in favour of his daughter Punithavathi and another portion was sold to his son-in-law Jayaraman, which was partitioned between Murugesa Gounder and Subramanian Gounder. On 7.2.1999 the said Punithavathi and Jayaraman executed three sale deeds in favour of each of the B parties and they held the possession of the disputed property so far. Prior to that, the predecessors of the B parties were in possession of the property. During the course of hearing, B party also claimed that the water connection was in the name of their vendors and they transferred in their names. The Sub Divisional Magistrate has also directed the Tahsildar, Taluk Office, Pondicherry to conduct local enquiry and he gave the report to the effect that the site was under the possession of one Jayaraman and Punithavathi and their family. The Sub Divisional Magistrate has also directed the Tahsildar, Taluk Office, Pondicherry to conduct local enquiry and he gave the report to the effect that the site was under the possession of one Jayaraman and Punithavathi and their family. Under such circumstances, the learned Magistrate confirmed that B party was in possession of the disputed property and ordered the possession of the property shall be with the B party until revised by the competent Civil Court by an Order dated 4.10.2000. Aggrieved against this, ‘A’ party has come forward with the present revision. 4. Heard the learned counsel of both sides. 5. The point that arises for consideration is whether the order passed by the Sub Divisional Magistrate is proper and correcte 6. Point: The dispute between ‘A’ party and ‘B’ party is with reference to the site in R.S.No.52/ 9. Both the parties claimed that they are in possession and enjoyment of the disputed property. ‘A’ party now relied upon the sale deed dated 8.10.1896, the mortgage deed dated 29.6.1895 and the Will executed by one Ponnambala Pillai dated 28.6.1960 and also the Power Deed of one Udayakumar. On the other hand, ‘B’ party relied upon the sale deed dated 30.9.1946, the partition deed between Murugesa Gounder and Subramania Gounder, the settlement deed dated 22.6.1988 and the sale deed dated 22.11.1995 and three other sale deeds bearing Nos.5400 of 1999. It is manifestly clear that the learned Magistrate came to the conclusion in favour of the B party based upon the report given by the Tahsildar, Pondicherry and according to him, in view of the local enquiry conducted by the Tahsildar, it was learnt that the site had been under the possession of B party. 7. Learned counsel for the ‘A’ party contended that the learned Magistrate had passed a preliminary order under Sec.145(1) of Criminal Procedure Code without being satisfied about the existence of a dispute likely to cause breach of peace. He had not set out the grounds which formed the basis for his satisfaction. He erred in going into the merits of the dispute and the report of the Tahsildar has been relied upon and the same was not given to the parties concerned and no opportunity was also given to cross examine the Tahsildar. He had not set out the grounds which formed the basis for his satisfaction. He erred in going into the merits of the dispute and the report of the Tahsildar has been relied upon and the same was not given to the parties concerned and no opportunity was also given to cross examine the Tahsildar. The learned Magistrate ought not to have relied upon the report of the Tahsildar before furnishing a copy of the same and as such, the order is liable to be set aside. 8. As adverted to, the dispute between the parties is with reference to the vacant land and both of them have claimed possession. Originally, this property was an agricultural land and for want of irrigation facility, no agricultural activity was carried on and it appears that the property is not fit for putting up construction. It is necessary to state that whenever there is dispute about the title of the property, it has to be decided only by the competent Civil Court and the Sub Divisional Magistrate is not competent to go into the question. Only when there is threat to peace and it is likely to cause imminent danger, they one the Sub Divisional Magistrate has got power to enter into the matter. Now, the Station House Officer, Lawspet Police Station has filed the first information report under F.I.R. No.8 of 2000 dated 19.1.2000 under Sec.145 of Criminal Procedure Code. The enquiry revealed that R.S.No.52/9 belonging to ‘A’ party, on which the ‘B’ party is putting up construction and both of them have produced the documents to claim the ownership. Since the land has become disputed property between the parties, they may likely to indulge in acts of violence which will result in breach of peace and disturbing public tranquility. It is further stated that the acts of both parties will end in law and order problem which cannot otherwise be prevented by police. Under such circumstances, the information has been laid under Sec.145 of Criminal Procedure Code by the Section House Officer. 9. Learned counsel for the petitioners contended that there is no material to enable the Sub Divisional Magistrate to pass an order under Sec.145(1) of Criminal Procedure Code and the grounds of satisfaction have not been furnished. It is only the subjective satisfaction of the officer concerned to pass an order. 9. Learned counsel for the petitioners contended that there is no material to enable the Sub Divisional Magistrate to pass an order under Sec.145(1) of Criminal Procedure Code and the grounds of satisfaction have not been furnished. It is only the subjective satisfaction of the officer concerned to pass an order. So far as this case is concerned, the Station House Officer has filed the first information report, wherein he has clearly stated that both parties claimed possession of the property and they indulged in putting up construction and, therefore, there is every possibility that there will be not only law and order problem but there will be a threat to peace also. The grounds have not been specifically mentioned in the order; but at the same time, a perusal of the same would indicate that the averments in the first information report have been incorporated in the order. The copy of the report given by the Tahsildar has also been filed now, but admittedly, the copy of the same was not given to any one of the parties. When a report is relied upon by the Sub Divisional Magistrate, he is bound to supply the copy of the same and if necessary, an opportunity also ought to have been given to the parties to file their objections. It is not known that such a procedure has been adhered to by the lower authority and in the absence of furnishing the copy of the report of the Tahsildar, the reliance of the same is an improper one. 10. Learned counsel for the petitioners also relied on the decision reported in Dr. J.A. Thathruvasamy v. Raja (1998) 2 L.W. (Crl.) 574 wherein it refers to an earlier decision in R.H. Bhutani v. Mani J. Desai A.I.R. 1968 S.C. 1444 as follows: “It has been held by a long line of decisions by this Court that every preliminary order must satisfy the following tests: (a) The Magistrate must be satisfied on such police report or other information that the dispute was likely to cause breach of peace, and (b) on the satisfaction of the Magistrate, he must make an order in writing stating the grounds for his satisfaction in the order he intends making under Sec.145(1) of the Code. This has come to be called as the twin test. This has come to be called as the twin test. If the preliminary order in this case is crushed, it appears that the Magistrate from the materials collected in the manner referred to above in this order was in a position to satisfy himself about the existence of a dispute likely to cause breach of peace. But, however, the preliminary order does not state the grounds for his satisfaction. Therefore, the preliminary order is bad on account of the Executive Magistrate having failed to state the grounds of his satisfaction in the preliminary order itself.” The principle in this analogy can be made applicable to the case on hand. Considering the fact that the report of the Tahsildar was not furnished to either of the parties and the grounds of satisfaction have not been furnished in the order under Sec.165(1) of Criminal Procedure Code, I am of the view that the order is liable to be set aside. 11. For the reasons stated above, the revision petition is allowed and the order passed by the Sub Divisional Magistrate, Pondicherry dated 4.10.2000 is set aside. Both parties are directed not to put up any construction in the property and they should establish their title to the property in a competent Civil Court. Consequently, Crl. M.P. Nos.8465 of 2000 and 726 of 2001 are closed. B.S.-----Revision allowed.