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2006 DIGILAW 413 (MAD)

K. Varadharajan v. M. Subramanian & Another

2006-02-17

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Revision filed challenging the order passed by the Sub Divisional Magistrate-cum-Revenue Divisional Officer, Perambalur in Pa.Mu.A3/2850/2002 dated 10.5.2003.) This revision petition has been filed challenging the order passed by the learned Sub Divisional Magistrate-cum-Revenue Divisional Officer, Perambalur, in Pa.Mu.A3/2850/2002 dated 10.5.2003. 2. The petitioner-trust is running the college in the name of Haynes Rover Arts College in Madras-Trichy National Highways, Elambalur village. The land in dispute is situate in Survey No.74/3B 0.78.5 Ares in Elambalur village adjacent to the Haynes Rover Arts College. There have been rival claims in respect of the said land by the petitioner-trust and the first respondent. It is claimed by the first respondent that he purchased the land on 17.7.2001 and when he attempted to plot out the lands, the dispute arose between the petitioner and the first respondent, which resulted the first respondent to prefer the complaint to the police. Accordingly, the proceedings under section 145 of Cr.P.C. has been taken by the Revenue Divisional Officer, Perambalur, who after examining the rival claims and the documents produced by both parties, passed orders that the first respondent is entitled to Survey No.74/3B 0.78.5 Ares in Elambalur village and accordingly directed the Tahsildar, Perambalur to sub divide the property. The said order is now under challenge in this revision. 3. Learned Senior Counsel appearing for the revision petitioner has argued that the suit filed by the petitioner-trust in O.S.No.362 of 1996 was withdrawn and the petitioner-trust has also filed a fresh suit in O.S.No.314 of 2002 for partition against the first respondent and his vendor on the file of the District Munsif Court, Perambalur and when the petitioner-trust was about to purchase the land from the vendor of the first respondent, the first respondent has purchased the property and got the sale deed dated 17.7.2001, without properly demarcating and identifying the property. He further submits that the petitioner-trust is entitled to 7.77 acres excepting 1.93 and odd Ares i.e. the petitioner-trust is entitled to 5.84 and odd Ares in Survey No.74/3B. After the purchase, sub division was ordered and patta was issued to the petitioner-trust, first respondent and his vendor on 7.4.1992 and the same was cancelled subsequently on 20.4.1992 on the ground that there was no demarcation and identification. After the purchase, sub division was ordered and patta was issued to the petitioner-trust, first respondent and his vendor on 7.4.1992 and the same was cancelled subsequently on 20.4.1992 on the ground that there was no demarcation and identification. Learned Senior Counsel for the revision petitioner further argued that as the civil suit is pending and the right of the rival parties has to be declared by a competent court; the order passed by the Revenue Divisional Officer is improper. The learned counsel for the revision petitioner has also argued that this Court passed an order in W.A.No.136 of 2002 directing the authorities to consider the question of sub division and issuance of patta thereon after giving notice to both parties and as such the order passed by the Revenue Divisional Officer in the proceedings under section 145 of Cr.P.C. cannot be said to be proper. 4. In support of his contention, learned Senior Counsel for the revision petitioner has relied upon the decision of the Supreme Court in AMRESH TIWARI VS. LALTA PRASAD DUBEY AND ANOTHER reported in AIR 2000 Supreme Court 1504, wherein the Supreme Court has held as follows:- " It cannot be said that in every case where a civil suit is filed, section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under section 145 should not be allowed to continue. This is because the civil Court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate." 5. Learned Senior Counsel for the first respondent submits that considering the right of both parties, the authority concerned has found that the first respondent is entitled to 7.77 Ares in Survey No.74/3B 0.78.5 Ares in Elambalur village adjacent to the Campus of Haynes Rover Arts College and therefore, the said order does not call for any interference. 6. Learned Senior Counsel for the first respondent submits that considering the right of both parties, the authority concerned has found that the first respondent is entitled to 7.77 Ares in Survey No.74/3B 0.78.5 Ares in Elambalur village adjacent to the Campus of Haynes Rover Arts College and therefore, the said order does not call for any interference. 6. The petitioner-trust claiming title in respect of 3.87 Ares out of 7.77 Ares in Survey No.74/3B in Elambalur village, has filed the suit in O.S.No.314/2002 in the District Munsif Court, Perambalur on 30.9.2002 for declaration and also for permanent injunction restraining the defendants, their men, agents and servants from in any way and in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property, in which, the first respondent herein who is the second defendant in the suit is contesting along with the first respondent and his vendor and also filed a written statement as early as 2.12.2002. Therefore, when the civil suit is pending, the order of the Revenue Divisional Officer recording finding that the first respondent is entitled to 0.78.5 Ares in Survey No.74/3B cannot be said to be proper. Already, the civil suit has been filed by the petitioner-trust for declaration and permanent injunction. It is only in the civil suit, the rival claims of both parties can be settled finally. 7. In view of the above, the order under challenge being erroneous is liable to be set aside. Therefore, the revision petition is allowed setting aside the order under challenge. Since it is stated that suit ripe for trial, the District Munsif, Perambalur, is directed to dispose of the suit by June, 2006.