Ponnan vs Sakkarai @ Goindasamy

A. Ramamurthi, J.—Petitioner has filed the revision to set aside the order passed by the Executive Magistrate-Cum-Revenue Divisional

Officer, Kallakurichi made in A2/7455/98 dated 8.3.99.

The case in brief is as follows:

The Executive Authority has passed the impugned order on 8.3.99 that the disputed property viz., the Rice Mill is in the possession and enjoyment

of the Respondent herein and the order will be in force till the disposal of the civil case between the parties. The Petitioner as well as the

Respondent are brothers. The Petitioner has already filed O.S. No. 689/98 on the file of District Munsif Court, Kallakurichi and also filed I.A. No.

2155/98 and obtained an order of Status quo relating to the property in question. The civil court is already seized of the matter. It appears that the

father of the parties viz., Kandasamy Moopanar had executed a Will dated 26.5.98 and the truth and validity of the same is in dispute. The

Petitioner also filed another suit in O.S. No. 875/98 and the same is also pending in the same court. The Respondent is also a party in both the

suits. The Petitioner is questioning the alleged Will. Now, it appears that the Respondent has given a petition u/s 144 of the Code of Criminal

Procedure with the Executive Magistrate and the learned Magistrate passed the order as if possession of the rice mill is only with the Respondent.

Learned Counsel for the Petitioner contended that the proceedings before the Executive Authority is the abuse of process of law and. as such,

the order dated 8.3.99 is liable to be set aside. The Respondent has failed to establish his possession before the Civil Court. The Parties ought to

have been directed to decide the dispute in the pending suit. The Respondent has no title or possession or enjoyment in the rice mill. The Petitioner

alone is in possession and enjoyment of the same. There is no just and sufficient cause to invoke Section 144 of the code of Criminal Procedure.

The documents relied upon are only self serving and as such, it is liable to be set aside.

Learned Counsel for the Respondent, on the other hand, contended that the Executive Authority had perused all the documents filed by the

parties and only after satisfaction, passed such an order and there is no illegality or infirmity in the same. Moreover, the Petitioner has not obtained

any interim injunction from the Civil Court and the order passed was only Status quo to be maintained.

Heard the learned Counsel of both sides.

6 The dispute between the Petitioner and the Respondent, who are brothers, is with reference to the rice mill. The Respondent claims, right, title

and interest in the property by virtue of a will executed by his father. The Petitioner, on the other hand, disputes the validity of the will. Now

admittedly there are two suits pending on the file of District Munsif Court, Kallakurichi in O.S.689/98 and 875/98 between the same parties and

the disputed property is also one of the subject matters. No doubt, the Petitioner was granted the order of status quo to be maintained with

reference to the rice mill. Now there is dispute between the parties relating to the possession of rice mill and each of them claims enjoyment. When

admittedly the civil court is seized of the matter I am of the view that it is not proper on the part of the Executive Authority to usurp the jurisdiction

of the Civil Court and analyse the document and give a finding as if the possession of the property is with the Respondent. The Executive Authority

ought to have directed both the parties to decide the issue in the pending suit before the civil court. Learned Counsel for the Petitioner relied on

Ram Sumer Puri Mahant Vs. State of U.P. and Others, wherein it is observed that when a civil litigation is pending for the property wherein the

question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding u/s 145 of the Code, would not be

justified.... Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

Reliance was also placed upon another decision in Indrasan Rai Vs. Enayat Khan and Another, wherein it is observed that u/s 144, a merely

summary power is given to prevent breach of the peace and it is never meant to give jurisdiction to a Criminal Court to decide finally even the

question of possession and much less to decide questions of title and ownership of a property.

It has also been held in Bhanwar Singh and Others Vs. S.D.M., Khetri, that Magistrate cannot adjudicate a question of possession or title u/s

144 of the Code of Criminal Procedure.

Applying the aforesaid principles enunciated in the decisions, I am of the view that the order passed by the Executive Authority date 8.3.99 is

liable to be set aside. When the parties are already fighting before the Civil Court in respect of the subject matter, the possession or otherwise can

be decided only by the civil court. The finding of the Executive Authority amounts to interference in the jurisdiction of the Civil Court and on this

sole ground, the order is vitiated.

For the reasons mentioned above, the revision is allowed and the order passed by the Executive Magistrate-cum-Revenue Divisional Officer,

Kallakurichi dated 8.3.99 is set aside. The parties are directed to decide the rights in the pending civil suit. The learned District Munsif Kallakurichi

is directed to dispose both the suits in a period of three months. If the suits could not be disposed of in a period of three months for valid reasons,

it is open to the trial court to consider the appointment of a receiver relating to the rice mill. Consequently, Crl.M.P.2360/99 is closed.