Gopala Krishnan vs State

I. David Christian , J.—Tins Criminal Revision Case has been preferred by one Gopalakrishnan. who is B-Party in M.C.No.4/99/A.l/on the file of the Sub Divisional Magistrate and Sub Collector. Tiruppur to set aside the order passed by the Sub Divisional Magistrate u/s 145 Cr.P.C.

The Revision Petitioner Gopalakrishnan is the brother of Venkatachalani who was arrayed as A-Party before the Sub-Divisional Magistrate. After the death of the father, the petitioner and his brother Venkatachalani have divided the properties left by their father and Door No.4, Town Extension. I Street, Tiruppur was allotted to the share of the petitioner, whereas Door No.5, Town Extension, First Street, Tiruppur was allotted to the share of his brother Venkatachalani. Partition was effected on 14.4.1972 and ever since the petitioner is in possession and enjoyment of Door No.4, Town Extension, I Street, Tiruppur . There has been some dispute between the petitioner and his brother and the petitioner''s brother Venkatachalam tried to interfere with the possession and enjoyment of the petitioner and therefore the latter was constrained to file O.S.No.120 of 1999 before the Sub-Court, Tiruppur praying for a permanent injunction restraining Venkatachalam from interfering with his possession and enjoyment of building bearing Door No.4, Town extension, I Street, Tiruppur. He has also filed an Interlocutory Application in I.A.No.309 of 1999 along with the suit and obtained an interim order of injunction against Venkatachalani by the order dated 24.2.1999. While so, Venkatachalam seems to have been sending petitions to the Revenue Officials and to the police and on the complaint made by Venkatachalam Tiruppur South Police Station have registered a case in Cr.No.709 of 1999 u/s 145 Cr.P.C. on 1.11.1999. This was forwarded to the Sub Divisional Magistrate and Sub-Collector, Tiruppur who issued notices to Venkatachalam and this petitioner Venkatachalani was arrayed as A-Party and Gopalakrishnan. The present petitioner was arrayed as B-Party, Gopalakrishnan entered appearance and filed a written statement setting out his claim of possession of the disputed property and also filed documents in support of his claim. Venkatachalam did not file any statement of claim, but he filed number of documents.

The Sub Collector also called for a report from the Tahsildar, Tiruppar and on consideration of these materials, he has proceeded to pass an order dated 2.2.2000 as per which he found that Venkatachalam A-party is and has been continuously in possession of Door No.4, Town Extension, I Street, Tiruppur and directed ''B" Party Gopalakrishnan not to disturb his possession and also strangely prohibited Gopalakrishnan from executing a sale deed or mortgage in respect of the said property.

Aggrieved at the said order passed by the Sub-Divisional Magistrate and Sub-Collector dated 2.2.2000, Gopalakrishnan has preferred this Revision.

The point for consideration is as to whether the order passed by the Sub-Divisional Magistrate. Tiruppur dated 2.2.2000 in M.C.No.4/99/A. 1 can be sustained or not?

4.THE POINT:

The dispute has arisen between two brothers, who claim to have succeeded to the disputed property bearing Door No.4. Town Extension. First Street, Tiruppur. The Dispute is only in respect of this building and Gopalkrishnan does not dispute that his brother Venkatachalam is entitled to building bearing Door No.5, Town Extension, I Street, Tiruppur. Both of them claim to have been entitled to the respective houses only by virtue of succeeding to their father after his death. It is also seen from the records filed in support of their claims that both Venkatachalam and Gopalakrishnan have referred to a partition deed dated 14.4.1972 and the claim of Gopalakrishnan is based only on this partition deed as per which as against his share, he has been allotted Door No.4, Town Extension, First Street, Tiruppur. Even though Venkatachalam claims to be in possession and enjoyment of the building bearing Door No.4. he has not stated as to how he has become entitled to the said property because he also does not dispute that the father left number of properties and that they were divided among two brothers under a partition of the year 1972.

It is true that the Sub Divisional Magistrate is not very much concerned with the entitlement of the contesting parties for being in possession of the property, but he can decide as to who is or who was in possession even two months prior to the passing of the order dated 2.2.2000. So, the scope of enquiry u/s 145 Cr.P.C. is to find out who is actually in possession of the disputed property or who has been dispossessed by force within two months prior to passing of the order u/s 145 (1) Cr.P.C. Naturally the scope of the enquiry is to exclude the entitlement of the parties to the title, of the said property or entitlement to be in possession of the property. Even if a person is found in unlawful possession and enjoyment of the property, he cannot be allowed to be thrown out by force or threat or if a finding is given that he is in possession even though not entitled to, it is open to the other party or aggrieved party to approach the Civil Court for appropriate remedy for dispossessing him but Section 145 Cr.P.C. order can be passed asking other party not to disturb the possession. But to appreciate the claim of possession or the actual possession naturally one has to find out the source under which the party claims to be in possession. From the records available there is nothing to indicate as to how Venkatachalam. The brother of the Revision Petitioner, claims to have been in possession of the disputed property. Learned Counsel appearing for the respondent Venkatachalam does not dispute the fact that as per the partition deed, the house bearing Door No.4 has been allotted to Gopala Krishnan and not to his client.

Section 145 Cr.P.C. reads as follows :-

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 tune, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute

(2).......

(3)Copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4)The Magistrate shall then, without reference to the merits of 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, it 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 disputes

Provided that if it appears to the Magistrate that any parts has been forcibly and wrongfully dispossessed within two months next before the date on which the report or a police officer or other information was received by the Magistrate, or after that dale and before the date of his order under Sub-Section (1). he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-Section (i)

A reading of Section 145(1) Cr.P.C. would definitely show that the Executive Magistrate must pass a preliminary order u/s 145( 1) on being satisfied of two things: (1) that there is a dispute with regard to any immovable property; and (2) the dispute is likely to cause breach of peace. Only when these two things are satisfied or present, the Executive Magistrate will have jurisdiction to pass order u/s 145(1) Cr.P.C. and after making an enquiry as provided for in sub-Section 4 of Section 145 must decide as to who among the rival parties is in actual possessing or who has been dispossessed within two months prior to the passing of 145(1) Cr.P.C. order. Not every dispute with regard to immovable property will attract the jurisdiction of the Executive Magistrate. A reading of 145 Cr.P.C. would also make it very clear that the Magistrate while passing the order shall not concern himself with a right of the party to be in possession, but as to confine his findings only with regard to actual possession.

So far as the present case is concerned, the Executive Magistrate has not passed any order u/s 145(1) Cr.P.C. and this is not due to an mistake or inadvertence because in Page 6 of his order, the Executive Magistrate has referred to the dispute between the brothers regarding possession of the property and strangely observes "hence a preliminary Order u/s 145( 1) of Cr.P.C. was not issued as it was considered that there was no breach of peach to the public". The Executive Magistrate himself has given a finding with regard to absence of breach of peace and the absence of likelihood of breach of peace ensuing or resulting in the dispute. So, the jurisdiction of the Executive Magistrate will come into or will be attracted m case where there is dispute with regard to immovable property and on further likelihood of breach of peace by the rival parties in taking possession or dispossessing another party. Breach of peace or likelihood of breach of peace is an essential ingredient to exercise the power by the Executive Magistrate u/s 145 Cr.P.C. Since the Magistrate himself has given a finding that there is no breach of peace to the public and he has also not mentioned that there is likelihood of breach of peace, it is apparent on the face of the order of the Executive Magistrate that he purported to act u/s 145 Cr.P.C. inspite of lack of jurisdiction on his part. Moreover, the first thing an Executive Magistrate is expected to do before holding an enquiry u/s 145(4) Cr.P.C. is that he must necessarily pass orders u/s 145(1). which is the first requisite required for the Executive Magistrate to exercise the jurisdiction or to interfere in a dispute with regard to possession of immovable property.

The dispute with regard to title and possession in respect of an immovable properly has to be settled by the parties concerned by having recourse to Civil Court and Criminal Court will not be the proper court to decide these questions. Civil Courts are constituted or established by laws, which is the competent forum to decide the dispute with regard to right of the parties to property. An exemption is made u/s 145 Cr.P.C. and this exemption is also made only for the purpose of ensuring that breach of peace does not occur. Only to avoid breach of peace, the Magistrate is empowered to act u/s 145 Cr.P.C. and therefore, it has been made clear from the wordings of the Section itself that the Executive Magistrate shall not concern himself with the rights of parties or entitlement of parties to the disputed immovable property, but only to decide as to who is or was in actual possession of the property in respect of which a dispute has arisen. So. in the absence of breach of peace or likelihood of breach of peace, the Executive Magistrate will have no jurisdiction.

In this case, the order passed by the Executive Magistrate itself has made it very clear that there has been no breach of peace and there is no likelihood of breach of peace. In the absence of such likelihood, the Magistrate has no jurisdiction to decide as to who is in possession of the immovable property. The Executive Magistrate. Tiruppur has not considered this very important aspect and he himself has stated that there is no breach of peace or no likelihood of breach of peace and therefore must have refrained from acting u/s 145 Cr.P.C. Preliminary order u/s 145 (1) Cr.P.C. is mandatory because the question to decide with regard to possession of immovable property will have to be done by the Magistrate only if he is satisfied that there is breach of peace or there is likelihood of breach of peace. Mere existence of a dispute between two parties with regard to possession of immovable properly will not give handle to the Executive Magistrate to step in. So. when the learned Executive Magistrate has passed an order dated 2.2.2000 in M.C.No.4/99/A.l. he has exceeded his jurisdiction or he has acted without jurisdiction and the order is vitiated because he has not passed the order u/s 145(1) Cr.P.C. and also because he has chosen to act inspite of being satisfied that there is no breach of peace or there is no likelihood of breach of peace.

Therefore, on any view of the matter, the order passed by the learned Sub-Divisional Magistrate and Sub Collector, Tiruppur cannot be sustained. The order is illegal and the Magistrate has acted where he has no jurisdiction. This also becomes apparent when he finally proceeded to state by way of a mandate to the Revision Petitioner that he shall not sell or mortgage or encumber his property. So, the order on face of it cannot be sustained and it is liable to be set aside.

In the result, the Revision is allowed and the order passed by the Sub Divisional Magistrate and Sub-Collector, Tiruppur dated 2.2.2000 in M.C.No.4/99/Al is set aside. Consequently. Crl.M.P.Nos.1254 & 2312 of 2000 are closed.