Muthusamy and Others vs The Revenue Divisional Officer and Others

D. Murugesan, J.—This appeal is directed against the order in W.P. No. 8031 of 2010 dated 08.10.2010 whereby the Revenue Authorities

of Paravai Village and Post, Kunnam Taluk, Perambalur District, were directed to restore possession of the property in question to the Petitioner

therein/5th Respondent herein within a period of 2 weeks from the date of receipt of a copy of that order.

The writ petition came to be filed by the 5th Respondent herein, namely, Valliammai, on the ground that the property in question was owned by

her ancestors and that they were in possession and enjoyment of the same right from the year 1939 onwards. Sometime during 1983, one

Muthusamy, the 1st Appellant herein, made an attempt to interfere with the possession and enjoyment of the property in question by trespassing

into it with the help of some rowdy elements. Therefore, the husband of the 5th Respondent filed a suit in O.S. No. 467 of 1983 before the District

Munsif Court, Perambalur and obtained a decree on 26.07.1984. An execution petition was also filed for execution of the decree and

subsequently, the husband of the 5th Respondent was put in possession of the property and after the demise of her husband, the 5th Respondent

had been in possession of the property without any interference. While so, during September, 2009, when the 5th Respondent was away from the

village, the present Appellants trespassed into the property and erected certain structures. When the 5th Respondent questioned the same, she was

threatened by the Appellants herein armed with deadly weapons. Hence, she lodged a complaint, which was registered in Crime No. 483/2009 on

the file of Kunnam Police Station. Thereafter, she filed an application before the Executive Authority u/s 145 Code of Criminal Procedure seeking

restoration of possession. The said application was not considered. Therefore, the 5th Respondent filed the writ petition seeking a direction to the

Revenue Divisional Officer and the Tahsildar, Perambalur District to take appropriate action on the said application.

After hearing the learned Counsel on either side, the learned Judge, by order dated 08.10.2010, had issued a positive direction to the Revenue

Authorities to take back possession from the Appellants herein and restore the same to the 5th Respondent namely, Valliammai. It is this order,

which is put in issue, in this writ appeal.

Mr. R. Balasubramanian, learned Counsel appearing for the Appellants would contend that though a decree for possession was granted by the

Civil Court in the year 1984, thereafter, the Appellants had filed O.S. No. 588/1986 on the file of District Munsif Court, Perambalur for

declaration and injunction in respect of the same property. While rejecting the contention of the Appellants with regard to possession and

enjoyment of the property in question, simultaneously, the claim of the 5th Respondent, that she was in possession and enjoyment of the suit

properties was also negative by the Civil Court. Therefore, according to the learned Counsel for the Appellants, during the year 1986, the 5th

Respondent was also not in possession of the property and hence, she cannot now claim that since she was in possession of the property

throughout, the same must be restored to her. That apart, it is also the contention of the learned Counsel that when only the relief of disposal of the

representation was sought, the learned Single Judge ought not to have issued a positive direction.

On the other hand, the learned Counsel for the 5th Respondent would submit that though certain documents were filed to prove that the

husband of the 5th Respondent was put in possession based on a decree, those documents could not be proved for want of examination of the

officers, who had issued them. Nevertheless, the finding of the Court in the subsequent suit filed by the Appellants could not be considered to be a

finding on merits and that finding, would not, in any way, go against the finding given in the suit filed by the husband of the 5th Respondent wherein

it was held that he was in possession and the decree was also executed. In view of the above finding, according to the learned Counsel, it must be

presumed that the 5th Respondent was in possession of the disputed property.

We have also heard the learned Special Government Pleader for Respondents 1 to 4.

In our opinion, the challenge in this writ appeal, namely, questioning the order dated 08.10.2010 made in W.P. No. 8031 of 2010, cannot be

entertained for the simple reason that the Appellants have already lost the suit filed for recovery of possession of the property in question as early

as in the year 1983. It is also an admitted fact that the Appellants had entered into the property during September, 2009. Based on that possession

alone, the Appellants are now questioning the positive direction. The issue as to who is in possession of the property, whether the Appellants or the

5th Respondent, is a question of fact and it has to be enquired into by the Executive Magistrate. Admittedly, on the date when the application u/s

145 Code of Criminal Procedure was filed, the 5th Respondent was in possession of the property in question though her husband was put in

possession pursuant to a decree earlier. It is the contention of the Appellants that they took possession of the property as it was lying vacant and

therefore, the question as to whose right it is, to be in possession, is a matter for enquiry and decision and merely because, a decree was obtained

for possession in the year 1984, the same cannot be considered to be final to hold that the 5th Respondent was in possession of the property.

Though a few judgments were also cited by the learned Counsel for the Appellants in support of his contention that a positive direction cannot be

issued by the Court, we are not inclined to accept the same for it is not a general rule that this Court is prevented from issuing a positive direction.

That power is available to the Court in a given case. In this context, we may refer to the judgment of the Apex Court reported in Comptroller and

Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, laying down the law that the High Court, in

exercise of the jurisdiction under Article 226 of the Constitution of India can grant a positive direction in an appropriate case to the Public

Authority or Government to pass orders and give direction to compel the performance in a proper and lawful manner of the discretion conferred

upon the Government or the Public Authority in order to prevent injustice. In fact, the Apex Court has also reiterated the same principle in the

subsequent judgment reported in Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme Vs. State of Tamil Nadu and Others, .

However, that power should be exercised very cautiously and depending upon the requirement and circumstances. If, on the said principle, a given

case has to be considered, it has to be seen whether there are rival contentions.

According to the Appellants, the property was lying vacant when they took possession of the same during the year September, 2009. On the

other hand, the 5th Respondent claims that she was in possession of the property and the property was forcibly taken away from her during the

said time. Admittedly, the Civil Court, in the subsequent suit filed b y the Appellants in O.S. No. 588/1986, had held that there was no material to

show that the 5th Respondent was in possession of the property though certain documents were filed. These are all disputed questions. As such,

the Executive Magistrate, for the purpose of prima facie satisfaction, can go into the question as to who was in actual possession of the property on

the date of representation and in the event of finding that somebody had forcibly entered into possession, he can also order re-possession. As

already stated, these are all matters, that can be considered only by the Executive Magistrate and on the given facts and circumstances of the case,

we are not inclined to accept the positive direction to the Executive Magistrate and the case on hand does not come under exceptional cases

where this Court can exercise its power to issue positive direction.

In view of the above, the writ appeal is allowed and the positive direction issued by the learned Single Judge is set aside. The matter is remitted

back to the Executive Magistrate concerned, for consideration on merits. We make it clear that the Executive Magistrate shall also take into

consideration the decree obtained by the 5th Respondent for possession. Further, the documents, which were filed by her before the Civil Court in

the subsequent suit filed by the Appellants shall also be considered by the Executive Magistrate to find out whether the 5th Respondent was in

actual possession and whether the property in question was taken possession by the Appellants when she was away in September, 2009. The said

exercise shall be completed by the Executive Magistrate before the end of May, 2011. No costs. Connected M.P.s are closed.