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2022 DIGILAW 2895 (MAD)

Krishnaveni v. District Collector, Coimbatore

2022-08-24

G.K.ILANTHIRAIYAN

body2022
JUDGMENT (Prayer:Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records relating to order dated 18.12.2020 in Na.Ka.No.22641/2020/E1 of the second respondent and the order of the third respondent dated 18.11.2020 in Na.Ka.No.496/2018/A1, quash the same and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.) 1.This writ petition has been filed challenging the order passed by the second respondent dated 18.12.2020, thereby declaring the subject property in favour of the 8th respondent herein and directing the petitioners to handover the subject property to the 8th respondent herein and further directing the concerned Tahsildar to execute the order passed by the third respondent herein. 2. The property situated in Door No.227, Dr.Rajendra Prasad Road, 100 Feet Road, Coimbatore, originally belongs to one Kandasamy namely, the husband of the first petitioner herein. He died on 23.12.2001. He left his first wife and daughter as his surviving legal heirs. The first petitioner is the second wife of the said late Kandasamy. Due to difference of opinion, he left his first wife and married the first petitioner herein. Thereafter, they gave birth to 5 children. In fact, while he was alive, there was a dispute with regard to the subject property between himself and his first wife, viz, the fifth respondent herein. The said late Kandasamy filed a suit against the fifth respondent herein in O.S.No.916 of 1977, thereby restraining the fifth respondent from interfering with the peaceful possession and enjoyment of the suit property and also for declaration. He also filed another suit in O.S.No.286 of 1997 as against the sixth and seventh respondents herein, who are none other than his daughter and his son-in-law respectively, for recovery of the possession in respect of the subject property. After filing an execution petition in E.P.No.166 of 1997, the said Kandasamy died. He had executed a Will in favour of the first petitioner and one of his daughters by name Kavitha. Till his lifetime and even after his death, the petitioners are in possession and enjoyment of the subject property. 3. After filing an execution petition in E.P.No.166 of 1997, the said Kandasamy died. He had executed a Will in favour of the first petitioner and one of his daughters by name Kavitha. Till his lifetime and even after his death, the petitioners are in possession and enjoyment of the subject property. 3. While being so, the respondents 5 to 8 claim their right over the property as legal heirs of the said late Kandasamy and they are interfering with the peaceful possession and enjoyment of the subject property of the first petitioner herein. In fact, the first petitioner had leased out the subject property to a tenant viz, the 9th respondent herein. Due to repeated interference and disturbance of possession in respect of the subject property, both the parties lodged complaint and as such after registration of FIR in Crime No.186 of 2018, it was referred to the third respondent for initiation of the proceedings under Section 145 of Cr.P.C. After issuance of notice, the third respondent conducted enquiry. All the suits and applications ultimately culminated in C.R.P.No.2289 of 2016. While disposing of the said Civil Revision Petition, this Court held that the petitioners failed to prove the Will and as such the petitioners are not entitled for the subject property. 4. While being so, the third respondent after perusing the documents submitted by both the parties, found that the fifth respondent herein is entitled for the suit property by a Settlement Deed dated 01.11.2017, the fifth respondent herein settled the subject property in favour of her grand son viz, the 8th respondent herein, therefore, the subject property belongs to the 8th respondent herein and the petitioners are not entitled to have the suit property and hence, directed the petitioners to handover possession of the subject property to the respondents 5 to 8 herein. 5. While being so, the first petitioner filed a suit in O.S.No.1196 of 2020 on the file of the District Judge, Coimbatore, for declaration declaring that the impugned order passed by the third respondent herein is invalid and unenforceable. The suit is pending. However, there was an appeal remedy before the second respondent herein as against the order passed by the third respondent. The said appeal was also dismissed by the second respondent, confirming the order passed by the third respondent. 6. The suit is pending. However, there was an appeal remedy before the second respondent herein as against the order passed by the third respondent. The said appeal was also dismissed by the second respondent, confirming the order passed by the third respondent. 6. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners would submit that already there is a dispute between the parties, which are civil in nature and the same is pending before the Civil Court. Therefore, the respondents 2 and 3 have no jurisdiction to decide the title over the subject property. When the Civil Court is ceased off the issue, the third respondent has no jurisdiction to deal with the civil dispute that too pending between both the private parties in respect of their own patta land under Section 145 of Cr.P.C. It is a clear property dispute between the two wives of the said late Kandasamy. Therefore, the order passed under Section 145 of Cr.P.C is unsustainable in law and recovery of possession also cannot be ordered by the third respondent. 7. Per contra, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the respondents 5 to 8 submitted that the suit filed by the said late Kandasamy in O.S.No.916 of 1977 was between husband and wife. However, it was decreed as ex-parte and it was not executed more than 25 years. Therefore, the said decree is not enforceable under any law. It was not executed for the reason that they settled their dispute amicably. The said property continued to be in possession and enjoyment of the fifth respondent herein before and after the suit. As far as the petitioners are concerned, they are strangers and third parties to the said suit and the first petitioner lost her matrimonial right, up to the Apex Court. Therefore, she cannot claim any right over the subject property through the decree obtained by the said late Kandasamy. 8. The fifth respondent also filed a suit for declaring herself as a absolute owner of the subject property against her husband in O.S.No.1242 of 2002 on the file of the District Munsif Court, Coimbatore. The petitioners 1 and 2 herein filed a petition to implead them as legal heirs of the said late Kandasamy on the strength of the Will dated 29.01.2001 and the same was allowed. The petitioners 1 and 2 herein filed a petition to implead them as legal heirs of the said late Kandasamy on the strength of the Will dated 29.01.2001 and the same was allowed. Aggrieved by the same, the fifth respondent herein filed Civil Revision Petition before this Court in C.R.P.No.1650 of 2006, which was also confirmed the order passed by the Court below. While her husband was alive, he filed R.C.O.P.No.85 of 1988 on the file of the Rent Controller, Coimbatore, for eviction on the ground of wilful default in payment of rent as against the tenants. He also filed a petition under Section 11(4) of Tamil Nadu, Buildings, Lease and Rent Control Act, for claiming arrears of rent in respect of the subject property. It was allowed and he also filed an execution petition in E.P.No.143 of 2001 to handover the possession of the subject property. However, he died and thereafter, the first petitioner herein filed a petition to execute the decree and the same was dismissed for the reason that they are not entitled to deal with the execution proceedings as they have no locus standi. Aggrieved by the same, they filed Civil Revision Petition in C.R.P.Nos.1477 and 1478 of 2004 and both were dismissed by this Court. In fact, it was also confirmed by the Hon'ble Supreme Court of India in SLP No.7838 of 2017. Thereafter, they filed Review application in Review Application Nos.215 and 216 of 2019 in C.R.P.Nos.1477 and 1478 of 2004 before this Court and the same was dismissed by this Court by an order dated 19.11.2018. Thereafter, they also filed a suit for declaration in respect of the subject property in O.S.No.567 of 2017, on the strength that they are the legal heirs of the said late Kandasamy on the file of the District Munsif Court, Coimbatore. The said suit was also dismissed on 16.04.2019. Aggrieved by the same, they filed an appeal suit in A.S.No.68 of 2019 and the same was also dismissed by the Judgment and Decree dated 04.01.2021. Thereafter, one of the tenants filed a complaint and initiated proceedings under Section 145 of Cr.P.C as against the first petitioner herein and by an order dated 01.02.2012, the Revenue Divisional Officer directed to handover the vacant possession of the subject property in favour of the fifth respondent herein. Thereafter, one of the tenants filed a complaint and initiated proceedings under Section 145 of Cr.P.C as against the first petitioner herein and by an order dated 01.02.2012, the Revenue Divisional Officer directed to handover the vacant possession of the subject property in favour of the fifth respondent herein. In the meanwhile, one of the tenants of the fifth respondent also filed a complaint as against the first petitioner and same was registered in Crime No.1398 of 2017 and the first petitioner obtained anticipatory bail. 9. The fifth respondent executed a settlement deed in favour of her grand son viz, the 8th respondent herein. It is also under challenge in O.S.No.914 of 2018 on the file of the District Munsif Court, Coimbatore. She also filed an appeal before the District Registrar to nullify the said document. By an order dated 12.04.2019, the District Registrar rejected her application. In such circumstances, on the complaint lodged by the fifth respondent as well as the first respondent, the proceedings under Section 145 of Cr.P.C. has been rightly rejected by the third respondent and declared the title in favour of the fifth respondent and directed the petitioners to handover vacant possession of the subject property to the 8th respondent herein. It was also confirmed by the second respondent and as such the second and third respondents have jurisdiction to pass an order only on the strength of the Civil Court orders. 10. Heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners, Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the respondents 1 to 4 and Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the respondents 5 to 8. 11. It is seen that admittedly, the Civil Suit filed by the first petitioner in O.S.No.914 of 2018 for declaration declaring that the settlement deed executed by the fifth respondent in favour of the 8th respondent as null and void, is pending on the file of the District Munsif Court, Coimbatore in respect of the subject property. Though, the first petitioner failed to prove her marriage with the deceased Kandasamy, admittedly, the other petitioners are born to her through the deceased Kandasamy. They are in possession and enjoyment of the subject property. One portion of the property was let out to tenant and it is pending for eviction in the execution proceedings. Though, the first petitioner failed to prove her marriage with the deceased Kandasamy, admittedly, the other petitioners are born to her through the deceased Kandasamy. They are in possession and enjoyment of the subject property. One portion of the property was let out to tenant and it is pending for eviction in the execution proceedings. Now, the only point for consideration is that whether the second and third respondents have jurisdiction to initiate proceedings under Section 145 of Cr.P.C, when the Civil Court ceased off the matter in respect of the subject property that too pending between the two legal heirs born through 2 wives. 12. The proceedings under Section 145 of Cr.P.C can be initiated whether dispute concerning land or water is likely to cause breach of peace. It is relevant to extract the provisions under Section 145(1) of Cr.P.C, "145. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." 13. Thus, it is clear that whenever by a report of a Police officer, the Executive Magistrate felt that a dispute is likely to cause breach of peace, the Executive Magistrate can initiate proceedings under Section 145 of Cr.P.C. Whereas, in the case on hand, the dispute between the 2 sets of legal heirs of deceased Kandasamy in respect of the subject property, there is absolutely no satisfactory reason that there would be a dispute likely to cause breach of peace. Already as stated supra, the Civil Court ceased off the matter and it is pending in respect of the very same subject property between the petitioners and the respondents 5 to 8 herein. Already as stated supra, the Civil Court ceased off the matter and it is pending in respect of the very same subject property between the petitioners and the respondents 5 to 8 herein. Though, the Revenue Officials are empowered to consider the prima facie consideration of the right of the parties, they cannot act as a Civil Court to declare the title in favour of one party. The parties can establish their title over the property only before the Civil Court. 14. Therefore, the Civil Court has got jurisdiction to decide the title over the property. The Revenue Officials have no jurisdiction and no power to declare title in favour of any of the parties. That apart, there are 3 fundamental requisites to maintain an order under Section 145 of Cr.P.C and they are, (i) There must be a report of police officer or other information that a dispute was likely to cause breach of peace concerning the property mentioned in the section; (ii) The Magistrate must be satisfied with such police report or other information that the dispute was likely to cause breach of peace; and (iii) on the satisfaction of the Magistrate, he must make an order in writing stating the grounds for satisfaction in the order, under Section 145(1) of Cr.P.C. 15. Merely, the Executive Magistrate stating that he has satisfied from the Police Report or other information that a breach of peace or likely to be caused, he is recording the fact of his satisfaction but not the grounds of his satisfaction. The Order, therefore must indicate the grounds for finding that there was likelihood of breach of peace and any non-compliance, certainly vitiates the preliminary order which was passed under Section 145(1) of Cr.P.C. In fact, in the case on hand, the third respondent, on receipt of the complaint forwarded by the fourth respondent, mechanically initiated proceedings under Section 145 of Cr.P.C., by the impugned order declaring the title in favour of the fifth respondent and directed the petitioners to handover the vacant possession of the subject property in favour of the 8th respondent herein on the strength of the settlement deed executed by the fifth respondent. The said settlement deed executed by the fifth respondent in favour of the 8th respondent herein is under challenge in the suit filed by the first petitioner herein in O.S.No.914 of 2018 on the file of District Munsif Court, Coimbatore. When the Civil Court ceased off the matter with regard to title, the second and third respondents have no jurisdiction or no power to initiate the proceedings under Section 145 of Cr.P.C. That apart, there is a dispute between 2 sets of legal heirs and there is absolutely nothing which warrants initiation of proceedings under Section 145 of Cr.P.C since there is no question of breach of peace with regard to the subject property. 16. In view of the above, the impugned orders passed by the second and third respondents cannot be sustained and the order dated 18.12.2020 in Na.Ka.No.22641/2020/E1 of the second respondent and the order of the third respondent dated 18.11.2020 in Na.Ka.No.496/2018/A1 are hereby quashed. However, the respondents 5 to 8 herein can approach the Civil Court for appropriate relief in respect of the subject property as against the petitioners, in the manner known to law. 17. Accordingly, this writ petition stands allowed. Consequently, connected Miscellaneous petition is closed. There shall be no order as to costs.