Abdul Rasheed vs Syed and Others

K.M. Natarajan, J.—This revision is directed against the order dismissing the petition filed u/s 145, Criminal Procedure Code passed by the

Revenue Divisional Officer and Executive First Class Magistrate, Usilampatti, in M.C. 1 of 1981.

The case of the Petitioner is that he took the lands of an extent of 3.18 acres in Kanavoipatti village, Nilakottai Taluk, on lease from Muthavaili

K.A. Abdul Karim, that the application filed by the Petitioner to register his name as tenant under the Record of Tenancy Rights Act was allowed,

that in respect of the management of the wakf properties, disputes arose between Muthavalli and wakf board officials, that a civil suit was filed,

that the counter Petitioners were trying to interfere with the possession and enjoyment of the lands by the Petitioner, and that the Petitioner, who

apprehended breach of peace, instituted proceedings u/s 145, Code of Criminal Procedure. The learned Executive First Class Magistrate passed a

preliminary order u/s 145(1) on 12th January, 1981, granting an interim injunction in favour of the Petitioner restraining the counter Petitioners from

interfering with the possession and enjoyment of the lands by the Petitioner till the disposal of the case and directing parties to appear before him

and file statement in writing of their respective claims regarding the actual possession of the lands and produce documents in support of their

respective claims.

The counter Petitioners opposed the claim contending that due to differences between the trustees, majority of them requested the Tamil Nadu

Wakf Board to take over possession of the properties of Pallivasal, that Muthavalli K. Abdul Karim also agreed to surrender the properties to the

Wakf Board, that the Executive Officer, Madurai, took possession of the properties on 9th September, 1980, and since then he is in management

and administration of the properties, that the Petitioner executed a varthamanam letter on 1st April, 1980, when he executed a lease deed in favour

of Muthavaili K. Abdul Karim, that the Petitioner suppressed the factum of dismissal of the petition filed by him for temporary injunction in I.A.

2534 of 1980 in O.S. 1172 of 1980 by the District Munsif Dindigul, that only after the dismissal of the said application, public auction was held on

13th November, 1980, for leasing out the lands, that counter Petitioner No. 2 was the highest bidder and he is put in possession of the lands for

cultivation, that the Petitioner has not preferred any appeal against the dismissal of the injunction petition, that the Petitioner is the aggressor and

that he has no right over the lands in question.

The learned Magistrate observed in his order that the lease deed, dated 1st April, 1980, executed in favour of the Petitioner was long before

taking possession of the properties by the Wakf Board, that the Petitioner has failed to approach the present owner viz., the Wakf Board to

recognise him as tenant in the light of the lease executed by the erstwhile Manager (Muthavalli) and that since he has failed to do so, the lease deed

is not valid. The learned Magistrate further observed that the Petitioner has not included the present owner in the petition filed to register him as

tenant before the Record Officer, Nilakottai, that under the varthamanam letter dated 1st April, 1983, the Petitioner has agreed to be an agent and

cultivate the lands, that the Petitioner has not chosen to mention about the dismissal of the injunction application, but he has mentioned about the

injunction obtained by K.A Abdul Rahim and two others against the Tamil Nadu Wakf Board and that the Record Officer on the application filed

by the Executive Officer, pallivasal, ordered fresh enquiry in T.R. 38 of 1980 after impleading the Executive Officer and one Raju as party. The

learned Magistrate dismissed the petition on the ground that the lease deed is not valid, that the petition filed for temporary injunction by the

Petitioner was dismissed and that fresh enquiry was ordered in the petition to register him as tenant.

Section 145(4), Code of Criminal Procedure reads as follows-

The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the

statements so put in, hear the parties, receive all such evidence as may be produced by them take such further evidence, if any, as he thinks

necessary, and, if possible decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1) in

possession of the subject of dispute.

The learned Magistrate while disposing of the petition has not applied his mind to the above provision. He ought to have given a finding regarding

possession of the disputed lands on the date of the order made by him under Sub-section (1) without reference to the merits or the claims of any of

the parties to a right to possess the subject of dispute. The feet of taking possession of lands by the'' Executive Officer subsequent to the lease and

fresh enquiry was ordered after impleading the Executive Officer and two others as parties are matters which are to be decided by the Record

Officer before whom the enquiry is pending. If it is found that the Petitioner was put in possession before the management of the Pallivasal was

taken over by the Wakf Board, in his capacity as a lessee as per the lease deed or as agent under the present Muthavalli as per the varthamanam

letter, he is entitled to be in possession till he is duly evicted by due process of law irrespective of the fact that the management was transferred to

the Executive Officer. The learned Magistrate ought to have enquired whether the possession has been taken from the Petitioner after the transfer

of management to the Executive Officer and whether the Petitioner or the counter Petitioner No. 2 was in possession on the date of the preliminary

order passed by him. The validity of the lease is beyond the scope of the enquiry. The fact of dismissal of the injunction application can be taken

into consideration while deciding the actual possession of the parties on the relevant date, but the order under revision cannot be passed on the

said ground alone. As pointed out already, the learned Magistrate should have adverted his mind on the question of actual possession on the date

of order passed u/s 145(1) , Code of Criminal Procedure without reference to the merits of the claims of any of the parties to a right to possess the

subject of dispute.

I feel it is just and proper to remit the matter to the learned Magistrate for disposal according to law. Therefore, the revision is allowed and the

order of the learned Magistrate is set aside. 1 he learned Magistrate is directed to restore M.C. 1 of 1981 on his file and dispose of the same

afresh according to law and in the light of the observations made above.