A.G.V. Subramania Iyer and Others vs Pudumadan and Others

Sadasivam, J.—The petitioners are respondents in M.C.T.P. No. 28 of 1959 on the file of the Executive First Class Magistrate, Tirunelveli, and they are referred to in these proceedings as the B party. The petition in the lower Court was one u/s 145, Cri.P C; it arose out of a dispute between the A and B parties in respect of some lands. There are eight items of lands as disclosed in the preliminary order u/s 145(1) Cri.P.C. The extent of the lands in respect of which the dispute between the parties existed is also given in that order. The learned Executive First Class Magistrate was of the opinion that he could not himself decide as to which of the parties was in possession of the properties in dispute and he therefore referred the question to the District Munsif of Tenkasi, u/s 146(1) Cri.P.C. to decide the question as to which of the parties was in possession of the three disputed lands, since there was no dispute as regards the other five items of properties. The learned District Munsif found that the A party was in possession of the whole extent of the survey numbers of the said three items and not merely the dispute portions in the three items.

In pursuance of the said finding, the learned Executive First Class Magistrate passed the final order upholding the possession of the A party and directing the B party not to interfere with the same. Hence the B party has come forward with the present petition.

The learned advocate for the respondents-A party relied on the decision in Mutha Sethurayar v. Lourduswami Odayar 1959 Mad. W.N. 367 : AIR 1959 Mad. 3 which was followed in Rengammal v. Rama Subbarayalu Reddiar 1959 Mad. W.N. 599 reported in the same volume : Rengammal Vs. Rama Subbarayalu Reddiar, in support of his contention that the revision is not competent. But it is clear from the said decisions that the High Court can revise an order u/s 145 Cri.P.C even though reference had been made to the District Munsif u/s 146(1) Cri.P.C. and that the only thing that the High Court in revision cannot go into Is the correctness or legality or otherwise of the findings of the Civil Court.

In view of the said decision cited by the learned Advocate for the respondents, it is not open to the petitioners to canvass the correctness of the order of the learned District Munsif. But it is certainly open to the petitioner to show any illegality committed by the Executive First Class Magistrate. It is true that the final order of the Executive First Class Magistrate is in accordance with the order of the District Munsif. But a final order should be in conformity with the preliminary order u/s 145(1) Cri.P.C. This final order cannot include properties which were not included In the preliminary order. Even if the Civil Court found on an enquiry that the A party was in possession of a larger extent of properties, that Is no ground for making a final order in respect of the properties which did not form the subject matter of the preliminary order tinder Section 145 (1) Cri.P.C. The reason is obvious, for, there are two pre-requisites for taking action u/s 145 Cri.P.C. one is dispute about possession of property and another that there is a likelihood of the breach of the peace. It Is possible that though a party may be In possession of other extents of property but there may not really be any likelihood of a breach of the peace in respect of the same. It follows that a final order cannot be made In respect of properties not covered by the preliminary order. The learned advocate for the petitioner points out that even the A party did not claim more than 84 cents in S. No. 35 and more than 56 cents In S. No. 121 and hence the said extents alone were made the subject matter of the preliminary order u/s 145 (1) Cri.P.C. He also pointed out that even in the notice dated 7-12-1959 the same extents were mentioned by the petitioners in the lower Court. It could not, therefore, be said that by a mistake a lesser extent was mentioned In the preliminary order u/s 145 Cri.P.C. Even if such a mistake had occurred the proper remedy is to take separate proceedings u/s 145, Cri.P.C. and not to extend the scope of the final order beyond the limits of the preliminary order.

For the foregoing reasons, the final order u/s 145 Cri.P.C. is modified by substituting the extent of these items of properties In dispute in accordance with the preliminary order.

Subject to the above modification the revision case is dismissed.