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2006 DIGILAW 1221 (MAD)

V. P. Senapathy v. V. N. A. S. Chandran and Others

2006-04-28

R.REGUPATHI

body2006
COMMON ORDER The Criminal Revision and original petitions have been filed seeking to set aside the orders dated 21.4.2004 and 1.2.2006 passed by the Revenue Divisional Officer, Kodaikanal in his proceedings Na.Ka.No.1104/04/A2 and A2/1104/2004 respectively. 2. There was a dispute over the possession of the property to an extent of 999 Sq.feet situated in D Ward, Block 6, TS No. 7/1A3, Kodaikkanal. The revision petitioner is the B-party. An order has been passed by the Revenue Divisional Officer, Kodaikanal on 21.4.2004 in Na.Ka. No. 1104/04/A2, restraining the petitioner from interfering with the possession of the respondent / A party. Aggrieved against the same, the present revision petition has been filed. 3. The learned counsel for the petitioner submits that he was in possession and enjoyment of the property from the date of his purchase through sale deeds dated 8.4.2002 and 9.4.2002; that he was running a shop in the name and style of “Family Shop”; that on 23.1.2004 this property was leased out to one Karthikeyan and subsequently, he was vacated by the petitioner; that the petitioner was paying property tax, electricity charges for the building; that while doing so, A-party, who is the respondent herein attempted to take over the property with an ulterior motive and a false police complaint was given on 18.2.2004; that to prevent the activities of the respondent, petitioner has filed a suit on 12.4.2004 in O.S.No.119/2004 on the file of the District Munsif Court, Kodaikkanal for permanent injunction against the respondent/A-party from restraining him from interfering with the peace ful possession and enjoyment of the Suit property by the petitioner and the same is pending; that the RDO has passed the impugned order under Section 145 of Cr.P.C. on the strength of the request of the police; that the RDO has passed the order on 21.4.2004 directing the petitioner not to interfere with the peaceful possession of the property in question as if the respondent was in possession of the property; that when a Civil litigation is pending between the parties, it may be improper to the RDO to initiate such proceedings; that the RDO has passed the order without scrutinising the relevant materials in this regard; that therefore, the proceedings under Section 145 of Cr.P.C. must be set aside. 4.Per contra, the learned counsel for the respondent/A-party submits that the sale deed in favour of the petitioner was sham transaction and the petitioner was employed as a worker with the respondent; that the petitioner in collusion with one Karthikeyan, in the absence of the respondent, sold the premises to the said person; that on 18.2.2004, the petitioner along with Karthikeyan has trespassed into the property along with 20 persons; that on the strength of the report given by the respondent a case has been registered by the Inspector of Police, Kodaikkanal; that on 21.4.2004 the RDO has passed an order directing the petitioner not to interfere with the peaceful possession of the respondent; that the petitioner is the real owner of the property and it is in his possession from November 1992 onward; that during 2001 the petitioner was permitted to run the Family Shop in the premises; that except during May-2001 to May-2003, the petitioner was not in possession of the property; that the RDO has conducted a detailed enquiry and the order has been passed based on the materials available on record; that at the time, when the proceedings under Section 145 of Cr.P.C. commenced no civil suit was initiated by the petitioner; that the pendency of the civil suit will not bar the RDO to take proceedings under Section 145 of Cr.P.C; that therefore the revision petition must be dismissed. 5. The revision petition was admitted and stay of the order of RDO has been passed by the principal bench of this Court at Madras. Interim stay was granted and extended from time to time till 13.6.2004. Thereafter, the revision petition has been transferred to the Madurai Bench of Madras High Court. On 1.2.2006, an order has been passed by the RDO directing the second respondent/Inspector of police, Kodaikanal to handover the possession of the property to the respondent/A-party, since the stay granted by the High Court was expired already. Aggrieved against the order passed by the RDO a Criminal original Petition No. 1318 of 2006 has been filed to set aside the order passed by the RDO in his proceedings A2/1104/2004 dated 1.2.2006 and an order of status quo was passed on 8.2.2006. 6. Aggrieved against the order passed by the RDO a Criminal original Petition No. 1318 of 2006 has been filed to set aside the order passed by the RDO in his proceedings A2/1104/2004 dated 1.2.2006 and an order of status quo was passed on 8.2.2006. 6. The Revenue Divisional Officer has filed his counter, wherein he has stated that since there was no stay in force as on that date, on the request of the respondent, he has passed the order dated 1.2.2006 directing the Inspector of Police, Kodaikanal to implement the order passed by him; that while passing the original order dated 21.4.2004 all the materials have been taken into account and has correctly come to the conclusion that the property was in possession of the respondent/A-party; that the enquiry has been initiated on receipt of the letter from the Inspector of Police, Kodaikanal to the effect that both the parties are indulging in activities causing breach of peace to the public; that the order has been passed after conducting enquiry; that he has passed the order in discharging of his official duty in accordance with law. 7. I have perused the materials available on record and heard the rival contentions made. The title of the property stands in the name of the petitioner/B-party as per the sale deed executed. The impugned order of RDO has been passed on 21.4.2004. The dispute with regard to the possession arose on 18.2.2004. The RDO has concluded that as on 18.2.2004 the respondent /A-party was in possession and further has given a direction that the petitioner should not interfere with his possession. This impugned order passed by the RDO has to be tested with other contemporaneous materials available on record to come to a conclusion as to which of the parties were in actual possession of the property. 8. The sale of the property as per the sale deeds dated 8.4.2002 and 9.4.2002 executed in favour of the petitioner is not in dispute. The petitioner was in possession of the property, thereafter, from May-2001 to May-2003 is also admitted by the respondent/A-party. Under such circumstances, though it is claimed that the respondent/A-party has taken over the property from the petitioner, there are no materials available to prove the same, except the complaint dated 18.2.2004 given to the police. The petitioner was in possession of the property, thereafter, from May-2001 to May-2003 is also admitted by the respondent/A-party. Under such circumstances, though it is claimed that the respondent/A-party has taken over the property from the petitioner, there are no materials available to prove the same, except the complaint dated 18.2.2004 given to the police. On the contrary, based on the sale deeds and subsequent possession, a Suit has been filed on 12.4.2004 and it was pending. The RDO was conscious about the pendency of such suit. It has been stated by the petitioner that the lease given to one Karthikeyan was terminated by way of a deed on 10.3.2004. Under such circumstances, as the respondent has not produced any materials to substantiate that he was in possession of the property up to 18.2.2004, it must be presumed that the petitioner was in possession of the property. Moreover, the RDO has passed the order dated 1.2.2006, which states as follows: “The individual (A-party) in the last reference has requested to implement the order dated 21.04.2004 and to hand over the property to him. As there is no stay as on date, I request you to implement the order of the RDO dated 21.4.2004 and to report the compliance at once”. This order has been forwarded to the Inspector of Police, Kodaikanal, which means that the petitioner was in possession of the property as on 1.2.2006. In view of the stay granted by the High Court, it is apparent that the possession was retained by the petitioner. Therefore it could be safely concluded that the petitioner was in possession as on date of the impugned order dated 21.4.2004. Though it has been stated in the impugned order that the respondent was in possession of the property as on the date of the complaint dated 18.2.2004, there are no other materials except complaint to substantiate the same. Under such circumstance, it must be presumed that the petitioner was in possession of the property even as on 18.2.2004. Under such circumstance, it appears that the petitioner was in possession from the date of sale up to the impugned order dated 1.2.2006. On careful scrutiny of the complaint given to the police by the respondent, it has been stated that some miscreants attempted to trespass into the property and after causing damage they went out. Under such circumstance, it appears that the petitioner was in possession from the date of sale up to the impugned order dated 1.2.2006. On careful scrutiny of the complaint given to the police by the respondent, it has been stated that some miscreants attempted to trespass into the property and after causing damage they went out. Nowhere it has been stated in the complaint that the possession has been taken over by the petitioner. Under such circumstances, I am at loss to understand that when the possession is not disputed in the complaint to the police and individual offences are alleged why the Inspector of Police, Kodaikanal made a request to the RDO to take up the proceedings under Section 145 of Cr.P.C. The RDO mechanically without application of mind relied only on this complaint supported by a Newspaper report, has come to a erroneous conclusion. It is obvious that the impugned order has been passed when a civil suit is pending. When there are sale deeds and other materials are available the RDO should have directed the parties to agitate their rights before the Civil Court. But the impugned order has been passed without taking in to consideration of the civil suit. It has been held by the Supreme Court in a case reported in Shanti Kumar Panda v. Shakuntala Devi AIR 2004 SC115: 2004 (1) SCC 438 , as follows: “10. Possession is nine points in law. One purpose of the enforcement of the law is to maintain peace and order in society. The disputes relating to property should be settled in a civilised manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section (2) of Section 145 Cr.P.C. having arisen, causing a likelihood of a breach of peace, Section 145 Cr.P.C. authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Section 145/146 Cr.P.C. have been held to be quasi-civil, quasi-criminal in nature or an executive or police action. The proceedings under Section 145/146 Cr.P.C. have been held to be quasi-civil, quasi-criminal in nature or an executive or police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or with in two months next before the said date, as referred to in the proviso to sub-section (4) of Section 145 of Cr.P.C. and maintain the status quo as to possession until the entitlement to possession was determined by a Court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned”. 9. In view of the foregoing reasons, the orders passed by the Revenue Divisional Officer, Kodaikanal dated 21.4.2004 and 1.2.2006 in Na.Ka.No.1104/04/A2 and A2/1104/2004 respectively, are quashed and accordingly, the revision petition and the criminal original petition are allowed. Consequently connected Crl.M.Ps. are closed.