R. Ayyappan vs Sub-Divisional Magistrate/Revenue Divisional Officer and Others

M. Venugopal, J.—The petitioner has projected the present Criminal Revision Petition as against the order dated 5.11.2012 in M.C. No.

174 of 2012 passed by the Learned Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District. The Sub-Divisional

Magistrate-cum-Revenue Divisional Officer, Theni, while passing the impugned order dated 5.11.2002 in M.C. No. 174 of 2012 has inter alia

observed that presently, the activity/conduct of the petitioner and Respondent, a dispute has arisen in respect of aforesaid place and therefore,

there is a likelihood of ''Breach of Peace'' has to be ascertained/found out and ultimately has come to a conclusion that the petitioner/Arul Kumar

has filed the Petition on 14.5.2012 and that the respondent Ayappan on 10.5.2012 has committed trespass by entering into the petitioner''s place

with the help of Hired men and the Police authorities will have to take appropriate action for displacing Ayappan from the encroached place and

further that to restore possession to Arul Kumar etc., and also the Respondent will have to remove the rice mill machines from the encroached

place where Arul Kumar has a right and further the respondent Ayappan''s and other men should not trespass into the property and accordingly,

passed final orders as per Section 145(4) and (6) of the Code of Criminal Procedure.

Challenging the order passed by the Learned Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam dated 5.11.2012 the

petitioner, as an aggrieved person has focused the instant Criminal Revision Petition before this Court.

According to the Learned counsel for the Petitioner, the impugned final order dated 5.11.2012 passed by the Revenue Divisional Officer-cum-

Sub-Divisional Magistrate, is a continuation of the previous proceedings dated 6.1.2012 (order in M.C. No. 279 of 2011/A. 4) and further that

the said earlier order dated 6.1.2012 passed by the First Respondent has been set aside by this Court in Crl. R.C. No. 12 of 2012 dated

29.2.2012 in and by which the First Respondent/Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District has been

directed to take appropriate action, if he deems fit, by following the procedure contemplated u/s 145(1) of the Code of Criminal Procedure.

The Learned counsel for the petitioner submits that the petitioner is running a rice mill from 7.9.1989 and on 6.3.2012 the First Respondent has

recognised the petitioner''s possession and from the year 1989 for about 22 years, till the final orders have been passed, the petitioner has been in

possession of the place (and in fact, the petitioner is a ''B'' party) and moreover, in the instant case on hand, the First Respondent has usurped the

powers of Civil Court and has observed in the impugned order dated 5.11.2012 that the property in question belongs to the Third

Respondent/Arul Kumar.

Continuing further, the learned counsel for the petitioner contends that as per ingredients of Section 145 of the Code of Criminal Procedure, the

First Respondent is to see as to who is in possession on the date of passing of the impugned order and also that he cannot order restoration of

possession of drawing of the proceedings, if it is more than two months old.

That apart, the learned counsel for the petitioner submits that in the impugned order of the first respondent dated 5.11.2012 there are six

references in all and in the said references, there is no reference about the passing of the preliminary order and reference to the petition dated

14.5.2012 of the Third Respondent is a new fact. Also, in the entire final order passed by the First Respondent dated 5.11.2012 there is no

reference about the preliminary order being passed and also no reference about the extent of occupation. Furthermore, in the impugned order of

the First Respondent, there is no specific date of dispossession and encroachment and in fact, the First Respondent has admitted that the Revision

petitioner is in possession of the land in question for 22 years. Also that in the earlier order of the First Respondent dated 6.1.2012 the petitioner

(Ayappan) has mentioned as one who has been running the rice mill in the land/property belonging to the Third Respondent and this finding of the

First Respondent is alien to the ambit and purview of Section 145 of the Code of Criminal Procedure.

Added further, in the impugned order of the First Respondent dated 5.11.2012 eight dates have been mentioned beginning from 10.12.2009 till

11.5.2012 on which dates, at Allinagar Police Station, numerous complaints have been lodged by two sides and further that the First Respondent

has not stated in the impugned order dated 5.11.2012 as to what extent, the Revision petitioner has been in possession and in reality, the date

10.5.2012 with reference to the alleged trespass is an artificial one because of the fact but for the specification of the date 10.5.2012 the

ingredients of Section 145(1) of the Code of Criminal Procedure cannot be pressed into service.

The other stand taken by the petitioner is that the preliminary order should contain the date of dispossession and the preliminary order is silent in

this regard and also that the possession can be restored within two months of dispossession. Further, the plea of the petitioner is that, in Law, the

First Respondent has jurisdiction to pass orders for restoring the possession to the concerned person and if there is real dispossession, then, the

First Respondent is entitled to restore possession. Besides this, the petitioner, even on 6.1.2012 has been in possession of the disputed

place/property and if that be the case, it is not stated either in the preliminary order dated 8.6.2012 or in the final order dated 5.11.2012 as to how

the Third Respondent has come into possession of the property in question. To put it succinctly, the Learned counsel for the petitioner submits that

the impugned order dated 5.11.2012 passed by the First Respondent is without application of mind and in Law, the First Respondent has to

preserve possession.

At this juncture, the Learned counsel for the petitioner relies on the decision of the Honourable Supreme Court in Mohinder Singh Gill and

Another Vs. The Chief Election Commissioner, New Delhi and Others, wherein at special page No. 417, in paragraph 8, it is held as follows:

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the

reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the

beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw

attention to the observations of Bose, J in Gordhandas Bhanji:

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer

making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to

have public effect and are intended to affect the acting''s and conduct of those to whom they are addressed and must be construed objectively with

reference to the language used in the order itself.

Another plea taken on behalf of the petitioner is that as per Section 145(3) of the Code of Criminal Procedure, a copy of the order has to be

served in the manner provided by the Criminal Procedure by affixture in a conspicuous place at or near the subject of dispute. But the First

Respondent has not published the copy of the order as envisaged by the ingredients of the Code of Criminal Procedure. In this connection, the

Learned counsel for the petitioner seeks in aid of the decision of this Court in Ms. Tamaraiammal and Another v. The Executive Magistrate-cum-

Revenue Divisional Officer, Chengalpattu and Another 2007 Crl. LJ 1885 : (2007) 1 MLJ (Crl) 928, wherein at page 1889, in paragraph No. 18,

it is observed and held thus:

Therefore, it is crystal clear that the sub-section (1) to Section 145 of Cr.P.C., contemplates of passing a preliminary order giving out all the

necessary details and the grounds of satisfaction arrived at by the Executive Magistrate before the further proceedings. Therefore, merely sending a

notice is itself not sufficient to comply the mandatory requirements u/s 145(1) of Cr.P.C.

The Learned counsel for the petitioner urges before this Court that the petitioner filed an injunction suit in O.S. No. 16 of 2012 on the file of

the Learned District Munsif, Theni and the same was originally dismissed for default and restored to file and posted for hearing to 23.1.2003 and

invites the attention of this Court to the decision of the Honourable Supreme Court in Amresh Tiwari Vs. Lalta Prasad Dubey and Another,

wherein in paragraph Nos. 10 and 15, it is held thus:

Where only preliminary orders were passed in a proceeding u/s 145 and order of rejection of dropping the proceedings on an application by the

party on ground that civil suit in respect of same property was pending, had become final as revision against said order was also dismissed, and

when the proceedings were resumed and statement of parties were recorded, the subsequent order dropping the proceeding on application of

party was not liable to be set aside on ground that earlier order rejecting application for dropping proceedings was binding as it has becomes final.

The earlier orders were interim orders. They were passed before any evidence or statements had been recorded. Those orders were passed only

on the basis of the contentions of the parties. Moreover, at that stage, the party had contended that the civil proceedings did not relate to the same

properties in respect of which the proceedings u/s 145 Code of Criminal Procedure were adopted and when thereafter statements were recorded

in the Section 145 proceedings the party admitted that proceedings u/s 145 Code of Criminal Procedure were in respect of property which formed

the subject-matter of the civil suit and in respect of which an order for maintenance of status quo had been passed by the civil Court. Thus, the

factual position had changed. Further, interim orders, even though they may have been confirmed by the higher Courts, never bind and do not

prevent passing of contrary order at the stage of final hearing.

Also, he places reliance on the decision of this Court in Sengappan Vs. Arumbatha Veda Vinayagar Temple and 10 Others wherein at page

Nos. 198 and 199, in paragraph Nos. 18 and 19, it is laid down as follows:

In the present case, even though a terms of three years is fixed in the lease deed, either party has been given the liberty to terminate the lease by

giving three months notice. That means, within the next day of executing the lease could be terminated. Therefore, it cannot be said the lease is for

a term exceeding one year. It really amounts to tenancy-at-will making the tenant to surrender possession after a period of three months.

Therefore, it does not require registration.

Even if the Court assumes that the tenancy is for a term exceeding one year and therefore, compulsorily registrable, the Court does not think that

the document could be ignored for all purposes. The document can be relied upon to establish the jural relationship between the parties. The

document can also be relied on to prove the admission of the defendant in what capacity he is occupying the building and the nature of possession.

Per contra, it is the submission of the learned Government Advocate appearing for R.R. 1 and 2 that the First Respondent has passed the

impugned order dated 5.11.2012 after conducting a detailed enquiry, of course, after providing due opportunities to the parties and has come to a

consequent conclusion that on 10.5.2012 the petitioner (Respondent - Ayappan) has unlawfully encroached the place in possession of the Third

Respondent (petitioner therein) with the help of Hired men and further, as per Revenue Department Accounts, the land has been owned by the

Third Respondent, which has been encroached by the petitioner on 10.5.2012 and therefore, the First Respondent has directed the Police

authorities to remove the said encroachment and to restore possession of the same to him etc., which is a valid one in the eye of Law, which

requires no interference in the hands of this Court, sitting in Revision.

Conversely, it is the contention of the Learned senior counsel appearing for the Third Respondent that Section 145 of the Code of Criminal

Procedure speaks of procedure where dispute concerning the land or water is likely to cause Breach of Peace and as per the ingredients of

Section 145(1) of the Code of Criminal Procedure, the Revision petitioner and Third Respondent has absolutely having the land dispute and three

conditions enumerated u/s 145(1) of the Code of Criminal Procedure have been satisfied in the present case and accordingly, the First Respondent

after subjectively satisfied himself as to the factum of actual possession of the subject of dispute has passed the impugned order in a just, fair and

lawful manner and the same need not be disturbed by this Court.

It is the submission of the learned senior counsel for the Third Respondent that the petitioner on 10.5.2012 made an attempt to commit

trespass in respect of the land in possession of the Third Respondent and on 11.5.2012 the Third Respondent has lodged a complaint before the

concerned authority and on 14.5.2012 a petition u/s 145 of the Code of Criminal Procedure has been given and on 8.6.2012 a preliminary order

has been passed and in fact, the said order has been served on the petitioner. Furthermore, the petitioner has taken part in the detailed enquiry

conducted by the First Respondent and filed a written statement and after providing opportunities to all concerned, the First Respondent has

passed the impugned order and the final order dated 5.11.2012 speaks of the preliminary order dated 8.6.2012.

The Learned senior counsel for the Third Respondent projects an argument that the petitioner has not conveniently stated about the extent of

land that he is in possession and in fact, the subject of dispute land in S. No. 632/1 will be around 50 cents (out of an extent of 262 Sq. feet) in

which extent, the petitioner runs a rice mill has been proved before the First Respondent and the possession of the petitioner for 22 years is not for

entire extent of land and also that the First Respondent/Executive Magistrate has applied her mind judiciously and when the preliminary order is

dated 8.6.2012 and further, when an attempt of trespass is dated 10.5.2012 the same is within two months and therefore, the First Respondent is

entitled to pass the order of dispossession as per Section 145 of the Code of Criminal Procedure.

In regard to the filing of the injunction suit O.S. No. 16 of 2012 on the file of the Learned District Munsif, Theni, the Learned counsel for the

Third Respondent submits that the said injunction suit has been dismissed for non-prosecution originally and later, it has been restored to file and

no injunction has been granted in the said suit. In reality, the impugned final order passed by the First Respondent dated 5.11.2012 is passed u/s

145 of the Code of Criminal Procedure is only an interim arrangement to prevent Breach of Peace and if the Revision petitioner says that he is in

possession of the disputed land, then in Law, he has to approach a competent Civil Court for appropriate remedy. In short, the impugned final

order dated 5.11.2012 discloses the subjective satisfaction arrived at by the First Respondent and also that the said order does not suffer from any

infirmity in the eye of Law.

To lend support to the contention that this Court in Revision is not supposed to look into the aspect of sufficiency of material which has

subjectively satisfied the First Respondent, the Learned senior counsel for the Third Respondent relies on the decision of the Honourable Supreme

Court in R.H. Bhutani Vs. Miss Man J. Desai and Others, wherein it is held as follows:

(i) The satisfaction under sub-section (1) of Section 145 is that of the Magistrate. The question whether on the materials before him be should

initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules in that

behalf. The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which had satisfied the

Magistrate.

In the present case, the Magistrate had expressed his satisfaction on the basis of the facts set out in the application before him after he had

examined the appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction.

(ii) The jurisdiction u/s 145 being of an emergency nature, the Magistrate must ''act with caution but that does not mean that where on an

application by one of the parties to the dispute he is satisfied that the requirements of the Section are existent he cannot initiate proceedings without

a police report. The other view limits the discretion of the Magistrate and renders the words, other information'' in Section 145(1) either

superfluous or qualifies them to mean other information verified by the Police.

(iii) The High Court erred in holding that merely because dispossession of the appellant was completed before 20.6.1966 there was no dispute

existing on that day which was likely to lead to breach of peace or that the Magistrate was, therefore, prevented from passing the preliminary order

and proceeding thence to continue the enquiry and pass his final order. This reasoning would mean that if a party takes the law into his hands and

deprives forcibly and wrongfully the other party of his possession and wrongfully completes his act of dispossession, the party so dispossessed

cannot have the benefit of Section 145 as by the time he files his application and the Magistrate passes his order, the dispossession would be

complete and therefore, there would be no existing dispute likely to cause a breach of the peace. Such a view does not take into consideration the

second proviso to sub-section (4) which was introduced precisely to meet such cases.

The word ''dispossessed'' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even

where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a

case of both forcible and wrongful dispossession.

Reading Section 145 as a whole it is clear that even though Respondent 1 had taken over possession of the cabin, since that incident took place

within the prescribed period of two months next before (the date of the preliminary order, the appellant was deemed to be in possession on the

date of that order and the Magistrate was competent to pass the final order as he did.

By way of reply, it is the submission of the learned counsel that the impugned final order dated 5.11.2012 is the continuation of the original

order dated 6.1.2012 in which the petitioner has been found to be in possession of the disputed land and for 22 years from the year 1989 and the

final order dated 5.11.2012 is at variance of the original order dated 6.11.2012 and it exhibits the non-application of mind by the First Respondent

in a latent and patent manner. In short, the submission of the Learned counsel for the petitioner is that the final order dated 5.11.2012 stands

vitiated in the eye of Law.

Repelling the submissions of the Learned counsel for the Petitioner, the Learned senior counsel for the Third Respondent submits that the

petitioner is not entitled to rely on the earlier order dated 6.1.2012 because of the fact that this Court in Crl. R.C. No. 12 of 2012 on 29.2.2012

has set aside the said order dated 6.1.2012 passed by the First Respondent since the procedure for passing the preliminary order expressing

satisfaction has not been followed and further, a direction has been issued that it is open to the First Respondent to take appropriate action if

deems fit by following the procedure contemplated u/s 145(1) of the Code of Criminal Procedure. Later, due procedure has been followed by the

First Respondent and in fact, the preliminary order on 8.6.2012 has bean passed by the First Respondent and after providing adequate

opportunity to the parties concerned, the First Respondent has passed the impugned final order dated 5.11.2012 which does not suffer from any

impropriety or patent illegality in the eye of Law.

It is to be pointed out that the ingredients of Section 145 of the Code of Criminal Procedure are meant only to provide a speedy remedy for

the prevention of Breach of Peace arisen out of the disputes relating to the movable property by maintaining one or other of the parties in

possession. Also, the aim of Section 145 of the Code of Criminal Procedure is to enable a Magistrate to intervene and pass a transitory order in

regard to the possession of the property in dispute having effect till the actual right of one of the parties has been determined by a competent Civil

Court.

In this connection, this Court pertinently makes a significant mention that in the event of likelihood of ''Breach of Peace'' on account of a

dispute over land, a proceeding u/s 145 of the Code of Criminal Procedure ought to be drawn. As a matter of fact, a proceeding u/s 107 of the

Code of Criminal Procedure in such circumstances is certainly bad in Law.

That apart, the object of Section 145 of the Code of Criminal Procedure is not to provide the respective parties with an opportunity of bringing

their civil disputes before a criminal Court or maneuvering the possession for the purpose of subsequent litigation, although more often than not it is

the effect of such proceeding, but to clothe the Magistrate concerned with an additional poweread witheapon with a view to maintain peace within

the area for which he is primarily responsible.

No doubt, the Executive Magistrate must guard himself against the Section being abused persons using it with the object of getting possession

of property and driving the other side to figure as Plaintiff and prove his title.

It is to be pointed out that the proceeding u/s 145 of the Code of Criminal Procedure commences as soon as the Executive Magistrate makes

an order requiring the parties to file written statements, documents and the copy of the order being served on the parties. Really speaking, the

proceedings u/s 145 of the Code of Criminal Procedure, cannot be set aside merely because of the reason of vagueness when lands are

identifiable. In fact, in a Civil Suit, the burden is on the Plaintiff to exhibit better title. The rightful owner requires slight evidence/semblance of

evidence in regard to the actual possession. The jurisdiction u/s 145 of the Code of Criminal Procedure being an emergency nature, the Magistrate

cannot commence a proceeding without a Police report. Furthermore, the Police Report is a piece of material to assist the Magistrate to form his

subjective satisfaction opinion as to the existence of a ''Breach of Peace''.

Admittedly, the proceeding u/s 145 of the Code of Criminal Procedure are quasi, civil, quasi execution and quasi criminal. Before commencing

the proceedings u/s 145 of the Code of Criminal Procedure, two aspects are to be looked into, viz.,

(i) a dispute regarding an immovable property exists and

(ii) Such a dispute is likely to cause ''Breach of Peace'' requiring the Magistrate to pass a preliminary order as per Section 145(1) of the Code of

Criminal Procedure and make an enquiry u/s 145(4) and to pass a final order u/s 145(6) of the Code of Criminal Procedure. It is not essentially a

requisite fact that at the time of passing the final order, the apprehension of ''Breach of Peace'' should continue to exist. One cannot ignore an

important fact that the Executive Magistrate should avoid a Slip shot or prevent procedure in dealing with a matter u/s 145 of the Code of Criminal

Procedure, as opined by this Court.

Although the ingredients of Section 107 and Section 145 of the Code of Criminal Procedure are attracted to achieve the same, yet Section

107 deals with general disturbance of ''Breach of Peace'' in regard to the possession of an immovable property, in the considered opinion of this

Court. Before a Civil Court is said to have the jurisdiction u/s 145 of the Code of Criminal Procedure, the authority must indicate that he has

satisfied himself that an apprehension of ''Breach of Peace'' exists. That is why an order under sub-section (1) of 145 of the Code of Criminal

Procedure is to be passed before any further proceedings are initiated/taken and it is normally within the Executive Magistrate''s discretion as to the

sufficiency of materials upon which he arrives at the subjective satisfaction before he assumes jurisdiction. Further, a subjective satisfaction of the

Executive Magistrate must be based on sound judicial discretion regulated by Rules and Regulations and Laws.

In fact, the Executive Magistrate should state the ground of his satisfaction about the apprehension of ''Breach of Peace'' in his order. Before

deciding to pass the preliminary order, the Executive Magistrate is bound to receive the information which an individual wants to place. If he

immediately declines to pass a preliminary order after examining the Complainant and without giving him an opportunity to place the requisite

material to satisfy him as to the dispute likely to lead the ''Breach of Peace'', the said order is liable to be set aside in Law, in a given case. The

Police Report is a foundation of the initiatory order. No doubt, the Executive Magistrate must act with care and circumspection. However, this

does not mean that the Magistrate cannot initiate the proceedings without a Police Report. The Magistrate need not record a finding of existence of

apprehension of ''Breach of Peace''. Section 145 of the Criminal Procedure proceedings are not on title/inheritance but only confined to

possession, in the considered opinion of this Court.

The words ''other information'' are so wide to include within its ambit, an application by a private party. Also, the term ''dispute'' ought not to

be read as ''bona fide dispute'' and that the Magistrate before passing a preliminary order is required to decide whether the dispute in respect of an

immovable property is bona fide or not. If there is an apprehension of ''Breach of Peace'', the jurisdiction of the Executive Magistrate is not ousted

even if there is a decree of a civil Court in favour of any party to the dispute. But a proceeding u/s 145 of the Code of Criminal Procedure cannot

be continued when the competent Civil Court has already determined the right of the parties.

In Law, the jurisdiction of the Magistrate is not affected by any fact that the matter already is in Civil Court. If there is an apprehension of

''Breach of Peace'' and if there is a dispute relating to possession, the Magistrate undoubtedly can commence the proceeding u/s 145 of the Code

of Criminal Procedure, in the considered opinion of this Court. Moreover, there is no lack of jurisdiction of a Magistrate to commence the

proceedings u/s 145 of the Code of Criminal Procedure because of pending Civil Suit between the parties, where the rights are to be finally

adjudicated.

A preliminary order of the Executive Magistrate should contain

(i) A statement that the Magistrate is satisfied as to the existence of dispute likely to cause ''Breach of Peace'';

(ii) The grounds of satisfaction;

(iii) A correct description of property in dispute;

(iv) The statement of names and persons concerning such dispute and

(v) Directing the concerned persons/persons mentioned in the order to attend his Court in person or by Pleader on a specified time and date to put

in the written statement of their claims in respect of factual possession of the subject of dispute.

The possession referred to in Section 145 of the Code of Criminal Procedure is the actual possession at the time of initiation of proceedings

and not the possession at the time of the Executive Magistrate''s Order. The term ''Actual Possession'' means even a wrongful possession viz., that

of a recent trespasser in actual physical possession at the time of the proceedings. The Magistrate ought to find out the actual possession. In fact,

the meaning of dispute is not restricted to actual possession. But it extends to right of possession. Of course, the Magistrate is to pass orders u/s

145 of the Code of Criminal Procedure based on available materials on record.

In this connection, it cannot be forgotten that an Order passed u/s 145 of the Code of Criminal Procedure, does not affect title but only reflects

possession, in the considered opinion of this Court. In Law, the dispossession must be both wrongful and forcible. It will suffice if effected by show

or criminal force.

Coming to the aspect of one party, denying the service of the order passed by the Executive Magistrate, it is to be pointed out that ordinarily,

the Executive Magistrate ought to examine the serving person. If a party is supposed to be an aggrieved person and if he has full knowledge of the

proceedings, then, failure to serve notice upon the parties can at best be considered as a mere irregularity and the same can be cured by Section

465 of the Code of Criminal Procedure. Also, an omission in regard to the service will not render the proceedings vide after the parties were

present and no prejudice was caused to them.

The question of possession is to be decided with reference to a specified point of time viz., the date of initial order or in the case of

dispossession, a date within two months next preceding such order. The Executive Magistrate has discretion to determine the question of

possession on the basis of available evidence, as opined by this Court. Where a person has been dispossessed forcibly and wrongfully, possession

can be restored u/s 145 of the Code of Criminal Procedure. Further, an alternative remedy of filing a Civil Suit u/s 6 of the Specific Relief Act,

1963 is not prohibited.

It is well accepted principle of Law that the finding of possession rendered by the Magistrate u/s 145 proceedings are not binding on the

competent Civil Court. It is needless for this Court to point out that the competent Civil Court is to decide the lis between the parties touching

possession/title relief of suit property in a dispassionate manner de hors the proceedings by the Magistrate concerned u/s 145 of the Code of

Criminal Procedure.

This Court deems it appropriate to cite the following decisions to prevent an aberration of justice and to promote substantial cause of Justice.

(a) In the decision Bhuneshwar Prasad and Others Vs. Rommoy Roy, , it is held thus:

It is only where there is a dispute likely to cause a breach of the peace concerning any land or water or boundaries thereof and the dispute requires

to be decided on evidence that resort to Section 145 becomes necessary and for this purpose the dispute has to be a real dispute and not a mere

pretence on behalf of one of the contesting parties. Where there is no such real dispute and there is an imminent danger of breach of the peace,

order u/s 144 is proper.

(b) In the decision Velur Devasthanam Vs. A. Sambandamurthi Nainar, , it is held as follows:

When the Magistrate who is responsible for the maintenance of law and order within his own division comes to the conclusion that there was no

longer any apprehension of a breach of the peace, it is his duty to drop further proceedings u/s 145 leaving it open to the parties to resort to the

appropriate remedies in civil Courts. This can be done at any stage. It is not obligatory for him to take evidence before dropping proceedings, and

need not give an opportunity to the parties to establish the contrary.

Also, in the aforesaid decision, at paragraph 8, it is observed as under:

On the question of the sufficiency of the evidence on which the Magistrate comes to the conclusion that there was no likelihood of the breach of the

peace and drops the proceedings u/s 145, the High Court in revision will not interfere with such an order unless it was obviously unreasonable or

unjust, because though the High Court is invested with powers of revision still orders under this Section should not be lightly disturbed; it is only in

very exceptional cases that the High Court will interfere.

(c) In the decision Thikka Surya Rao and Others Vs. Sirangu Sathiraju and Another, it is held as hereunder:

As there is no definition of the word ""judgment"" in the Criminal P.C., at all it will be proper to adopt the explanation of the word as understood in

the English Courts, namely, that by the word ""judgment"" is meant an order in a trial terminating in the conviction or acquittal of the accused.

Sections 366 and 367 do not in terms apply to proceedings u/s 145. Proceedings u/s 145 are not a ""trial"" wherein the provisions laid down for the

trial of cases under the Code of Criminal Procedure have to be adopted and a decision u/s 145 of the Code of Criminal Procedure cannot be a

judgment within the meaning of the term in Section 367.

The well-known legal maxim ''expressio unius est exclusio alterius'' applies to the construction of Section 367. This means that when an express

provision is made to treat the orders under Sections 118 and 123(3) as judgments, it follows that other orders except those that are finally passed

in trial do not come within the category of judgment.

On a reading of the Section itself, it will be clear that the final adjudication of the proceedings under that Section is not intended to be a judgment at

all. The use of the words ""decide"" in sub-section (4) and ""issue an order"" in sub-section (6) indicates that what was intended only an order and not

a final judgment.

The action of the Magistrate in hearing evidence and coming to a conclusion regarding the possession by either of the parties is only an inquiry and

not a trial. These proceedings are only quasi-criminal in nature where the Magistrate is entitled even to allow costs to the successful party.

Section 350(1) is applicable to proceedings u/s 145 but not the proviso to Section 350(1), because the parties are not accused.

Thus, a proceeding u/s 145 not being a trial an order issued by the Magistrate under sub-clause (6) of Section 145 is not a judgment and therefore,

the provisions of Sections 366 and 367 are not applicable and consequently the action of a succeeding Magistrate in pronouncing the order of his

predecessor in Court is perfectly justified.

(d) In the decision Mawad Dan and Others Vs. State, , wherein at paragraph Nos. 6 to 8 it is observed thus:

From the perusal of the record I find that when the police report was made for proceedings u/s 145, Crl. P.C. an application was presented on

behalf of the Gram Panchayat that there was no apprehension of breach of peace. In spite of this plea, the magistrate did not make it clear in his

preliminary order how he apprehended breach of peace between the Gram Panchayat, Godwas, and the Municipal Board, Neem-ka-Thana. Both

of them were local bodies being different arms of the same Government, and they could not possibly commit breach of peace. If it was

apprehended that any member or particular members of the Municipal Board or if any member or particular members of the Gram Panchayat were

to commit breach of peace, the proper course should have been to bind them down for keeping peace. The proceedings u/s 145 of the Code of

Criminal Procedure were obviously ill-conceived. The legislature has armed the Magistrate with powers u/s 145 of the Code of Criminal

Procedure to proceed when there is an apprehension of breach of peace about the possession of a certain immovable property between private

parties. This provision is not meant for deciding the question of territorial jurisdiction between private parties. This provision is not meant for

deciding the question of territorial jurisdiction between two different local bodies. Moreover, when an application was presented before the

Magistrate on behalf of the Gram Panchayat that there was no apprehension of breach of peace, there was all the more reason for the Magistrate

not to proceed u/s 145 of the Code of Criminal Procedure.

I agree with the learned Additional Sessions Judge that the Magistrate had committed an error in proceeding u/s 145, Cri.P.C. There was no

sense in making an order of attachment when the fair was already on. Moreover, the Magistrate had no jurisdiction to attach any movable property

u/s 345 of Cri.P.C. It was absolutely wrong on his part to order the Tehsildar to seize the papers and cash-box of the Gram Panchayat or of the

Municipal Board.

At the same time, I do not agree with the learned Additional Sessions Judge that the proceeding should be ordered to be converted u/s 147

Cri.P.C. That Section contemplates disputes likely to cause a breach of the peace regarding any right of user of any land or water within the local

limits of the jurisdiction of the Magistrate concerned. There was no dispute between the two local bodies about their right to use the land of the

other party. At any rate, the fair has already ended as pointed out by learned counsel for party No. 2 and therefore, it is unnecessary to continue

any proceedings whatsoever.

(e) In the decision Thamaraiammal and Another v. Executive Magistrate-Cum-Revenue Divisional Officer, Chengalpattu and Another (supra),

wherein at page No. 929, it is observed and held as follows:

While passing the order in W.P. No. 3326 of 2006, this Court specifically directed the first respondent herein to pass orders in the proceedings

initiated u/s 145 Cr.P.C. As such, it is for the first respondent herein to pass an order u/s 145 Cr.P.C., by strictly following the procedures

contemplated under sub-sections (1) and (3) of Section 145 Cr.P.C. It is also relevant to note that this Court in the very same order directed the

first respondent to conduct de novo proceedings u/s 145 of Cr.P.C., after strictly complying with the mandatory requirements adumbrated under

sub-clause 1 and 3 of Section 145 of Cr.P.C. It is needless to state that the first respondent should follow the mandatory requirements

contemplated u/s 145 of Cr.P.C.

The first respondent without passing the preliminary order under sub-section 1 of Section 145 of Cr.P.C., has passed the final order and such

order is liable to be quashed.

(f) In the decision Indira and others Vs. Dr. Vasantha and others, wherein it is held and laid down as follows:

The promulgation of a preliminary order as contemplated u/s 145(1), Cr.P.C., is the foundation, for the exercise of jurisdiction by the Executive

Magistrate. In any event, the prejudice to the petitioners, leading to the failure of justice is apparent in these proceedings, in view of non-recording

of evidence and consideration of the same as provided u/s 145(4) of Cr.P.C. Mere mentioning of some facts relating to dispute in summons does

not fulfill the requirement.

(g) In Shankarlal Vs. Alhaz Khaja Abdul Hasan and another, it is held that

Satisfaction of a authority, particularly when action to be initiated in a matter serious in nature, should be on the basis of sufficient material.

Satisfaction to be arrived at on the basis of such material should be in a position to convince others that when confronted with such material they

will have no other alternative but to take a similar decision as the one taken by the authority in the instant cases. The satisfaction arrived at shall not

only be reasonable but it must be an honest one. To know whether the satisfaction arrived at is the result of formation of honest opinion of the

concerned authority or not, one has to go through the events narrated.

(h) In Gabrial Thankayyam and Another Vs. Narayanan Nadar Perumal Nadar and Others, it is held as follows:

On a careful reading of Section 145 as a whole, particularly sub-section (1), it can be seen that the very foundation of an action under the sub-

section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order,

concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction. It is only on being satisfied that

there is a real dispute existing concerning the possession of immovable property and that such dispute is likely to cause a breach of the peace that

the Executive Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order u/s 145 of the Code. This satisfaction he or she may

get from a report of the Police Officer or upon other information. The Magistrate must be satisfied of the necessity to take action u/s 145 of the

Code before a preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the

Police Officer or upon other information. The provision in the sub-section that the Magistrate shall make an order in writing stating the grounds of

his satisfaction is mandatory. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order, Peria

Mannadha Goundar and Others Vs. Marappa Goundar, . Rel.on

The partition deed dated 6.6.1922 is between Azhagirisamy Naidu''s son Subba Naidu, his Son Kandasamy Naidu and their Children in

respect of ''A'' to ''F'' schedule properties being divided between them.

It is quite evident that the Revision petitioner in Theni District, Allinagar Village, in S. No. 632/1, out of 9 acres and 99 cents has taken 41 �

cents and 31 � Sq. feet land on the northern side upper portion on annual lease from Managing Trustee Parasuram Naidu for Rs. 1,000/- and

running a rice mill business. Further by means of a Registered Sale Deed dated 7.9.1989 the Revision petitioner has purchased the superstructure

of Parasuram Naidu, no one has come and demanded rent from him and that till date, he continuous to be in possession without paying rent.

Moreover, the aforesaid place belongs to Arulmigu Illaiyaguru Azhagarsamy Trust and since no one is fulfilling the public object/purpose, the

petitioner is performing the same and that the Third Respondent (Petitioner before the First Respondent) is trying to grab the property on various

ways and that complaint given on 11.5.2012 is false, etc.

Moreover, for the vacant extent of 41 � cents and 31 Sq/feet in S. No. 632/1, the rent receipt has been issued by the Hereditary Trustee of

Alagarsamy Mutt, Allinagar, Theni District on 14.9.1989 mentioning that the rent per year is Rs. 1,000/- for three years and the Lease Deed is

dated 7.9.1989 is between the Revision petitioner Allinagaram Arulmigu Mutt, rep. by its Managing Trustee, Veerasamy, Son of Parsurama

Naidu. Also, a Xerox Copy of the receipt in Form No. 5 of Arulmigu Azhagarsami Mutt dated 14.9.1989 has been issued by the Administrative

Officer of the Mutt to and in favour of the Revision petitioner mentioning an advance rent of Rs. 139.90. The Registration Certificate in favour of

the Revision petitioner Srinivasa Rice Mill at 92 Nehruji Road, Allinagaram is for resale of rice and patta for the period from 4.10.1987 until then

cancelled and the same is signed by the Commercial Tax Officer, Theni. The Certificate of Registration in respect of petitioner''s Rice Mill at 92

Nehruji Road shows that the petitioner is a registered dealer under the Tamil Nadu Value Added Tax Act, 2006 with effect from 1.1.2007 The

Professional Tax Receipt dated 23.3.2011 is in the name of the petitioner for the period 2010 - 2011 (I) and 2010-2011 (II).

A perusal of the contents of the First Information Report in Crime No. 302 of 2010 on the file of the Sub-Inspector of Police, Allinagaram

Police Station indicates that the Executive Officer of Arulmigu Gowmariamman Tirukoil has lodged a complaint by appearing before Allinagaram

Police Station and in Crime No. 302 of 2010 u/s 3(1) of TNPPDL Act, a case has been registered by the Police against one Kalaivanan Chandra

Bose and Kasi Viswanathan. In the said First Information Report, it is mentioned that the Complainant Pazhakannaiya is working as Executive

Officer at Veerapandi Arulmigu Gowmariamman Temple as per proceedings No. 6207/82 B 2 dated 27.11.1983 Further, it is mentioned that

today, 8.3.2010 at about 20 hours in the afternoon, in the worship place viz., Azhagarsami Madam with the help of Pokraine (JPC vehicle)

Machine bearing Registration No. TN 07-AU-402 has been demolished in toto by Subbiah''s Son Kalaivanan and his brother''s son Chandra

Bose and others and that the value of the demolished building is approximately at Rs. 5,000/- and that a request has been made for taking action

against them.

A complaint dated 15.7.2011 has been given by the Revision petitioner addressed to the Sub-Collector of Theni District stating that an

unlawful trespass has been made by the Third Respondent with the help of Deputy Superintendent of Police, Theni and has encroached with the

Hired men, numbering 40 in the rice mill belonging to the petitioner and by putting up a hut, thereby causing obstruction.

The First Information Report in Crime No. 249 of 2011 on the file of the Sub-Inspector of Police, Allinagaram Police Station shows that the

Complainant is L. Senthil Kumar, Inspector of Allinagaram Police Station, Theni District and the Third Respondent is mentioned as ''A'' Party and

the Revision petitioner is mentioned as ''B'' Party. In the First Information Report, it is mentioned that in the land bearing S. No. 632/1 belonging to

Subba Naidu @ Kannan, S/o. Arul Kumar (Third Respondent) ancestrally measuring an extent of 1 acre 99 cents, in 50 cents of land, the

Revision petitioner (Ayappan) is running a Rice Mill and on 15.7.2011 at about 11.00 Clock in the morning, when Arul Kumar (Third

Respondent) with his relatives have gone on inspection of the land because of the threat made by the Revision petitioner with his main Police party

has arrived and prevented the happening of untoward incident and thereafter, two sides have given an assurance before the Revenue Divisional

Officer, Periyakulam and an enquiry has been conducted on 18.7.2011 and till 31.7.2011 it has been agreed that the Mill is to be run and before

1.8.2011 a Court order is to be obtained and will abide by the same, but on 10.8.2011 at about 30.11.2013 in the morning, the aforesaid land

owner Arul Kumar (Third Respondent) and his relative Malaichamy have gone to the place and at that time, the Revision Petitioner, who is running

the rice mill with more than ten persons at the said place, made an attempt to attack him etc.

Also, the Inspector of Police, Allinagaram Police Station has advised the parties concerned to resolve the civil dispute and has for further

action with the copies of documents obtained from parties in Allinagaram Police in Crime No. 249 of 2011, a case u/s 145 of the Code of

Criminal Procedure has been registered and the original First information Report and other documents have been sent to the concerned Executive

Magistrate-cum-Revenue Divisional Officer, Periyakulam.

It appears that on 16.8.2011 a summons has been issued by the Revenue Divisional Officer, Theni addressed to the Third Respondent and the

Revision petitioner (through Allinagaram Police Inspector) requiring them to appear in connection with the enquiry on 22.8.2011 at about 3 p.m.,

in the evening at Periyakulam Revenue Divisional Office and also a direction has been issued for production of original documents to prove

property rights of the parties.

In M.C. No. 279/11/A-4 before the Revenue Divisional Officer-cum-Sub-Divisional Officer, Periyakulam, an affidavit has been filed by the

Revision petitioner in respect of ''A'' schedule property S. No. 632/1 measuring an extent of 0.41 � cents and 31 sq. feet on the northern side

upper portion of the land a vacant space out of one acre and 99 cents.

On 6.1.2012 in M.C. No. 279/2011/A4, an order has been passed by the First Respondent/Sub-Divisional Magistrate/Revenue Divisional

Officer, in which it is equally mentioned that the Revision petitioner is running a rice mill and the said place belongs to Third Respondent (Arul

Kumar) and also that a Mutt has been formed by ''A'' party''s ancestors as per partition deed and further, it cannot be compelled that one has to

follow what has been stated in the partition deed etc.

Further, it is also mentioned that the present place in T.S. No. 8/2 patta stands in the name of the Third Respondent/S.K. Arul Kumar and also

that the lease obtained by the petitioner has already been over and therefore, for removal of the rice mill machines from the aforesaid place and

also not to cause encroachment in the aforesaid place and a direction has been issued as per Section 145 of the Code of Criminal Procedure for

affecting the Law of Peace, the Police authorities have been directed to take proper action.

It transpires that the Revision petitioner has filed O.S. No. 16 of 2012 on the file of the District Munsif Court, Theni against the Executive

Officer of Arulmighu Gowmariamman Temple, Theni District and S.K. Arul Kumar (Third Revision Petitioner) in the suit, a relief of permanent

injunction, restraining the Second Defendant (Third Respondent in Revision Petition) from disturbing the peaceful possession and enjoyment of the

plaintiff (Revision Petitioner) has been sought. In the said complaint, the Revision petitioner has averred has among other things that the above said

Temple is an ''Expressing Trust'' for the public purposes of charitable Trust etc., and nobody turned to perform the object of the Trust and that the

plaintiff (Revision Petitioner) used to perform the Trust activities as an interested person.

It is also averred that the Executive Officer of Gowri Mariamman Temple has been in control over the property in S. No. 532, 633, 1.3.1817

by way of proceedings in Na. Mu. No. 6207/82-B2 dated 27.11.1983 by the respective authorities in which the suit schedule properties have also

been included about the said S. No. 632.

Now, in the Revision, an order dated 5.11.2012 has been passed by the First Respondent/Sub-Divisional Officer-cum-Revenue Divisional

Officer is challenged by the Revision petitioner in regard to the final order being passed in respect of the claim of right at S. No. 632/1 rice mill

space.

On behalf of the Third Respondent in the additional typed set of papers, patta transfers have been effected in respect of S. No. 632/1,

measuring an extent of 0.5 cents in the name of the Third Respondent, since he has purchased as per Sale Deed dated 23.10.2008 Also, chitta

bearing No. 3248 in S. No. 632/1 has been mentioned standing in the name of S.K. Arul Kumar (Third Respondent). It appears that the suit O.S.

No. 16/12 on the file of the Learned District Munsif Court, Theni has been dismissed on 26.11.2012 since the Plaintiff has been called absent and

the Court has dismissed the suit for default with costs, since already sufficient chances have been given to the Second Defendant which has been

present. Even though it is contended on behalf of the petitioner that the order in M.C. No. 279/11/A4 dated 6.1.2012 is an original order and that

the proceedings is a continuous one.

It is to be pointed out that this Court on 29.2.2012 has passed orders in Crl. R.C. No. 12 of 2012 setting aside the said order passed by the

Sub-Divisional Officer-cum-Revenue Divisional Officer, Periyakulam, Theni District and by following the procedure contemplated u/s 145(1) of

the Code of Criminal Procedure, the First Respondent has been directed to take appropriate action by following the procedure contemplated as

per Section 145(1) of the Code of Criminal Procedure and therefore, the initial order dated 6.1.2012 when it is set aside by this Court in Crl. R.C.

No. 12 of 2012 dated 29.2.2012 the same is not in existence in the eye of Law. Subsequently, the First Respondent/Sub-Divisional Magistrate-

cum-Revenue Divisional Officer, Periyakulam, on 8.6.2012 passed a preliminary order in M.C. No. 174 of 2012/A4 after requiring the parties to

appear in connection with the enquiry u/s 145(1) of the Code of Criminal Procedure. The date viz., 8.6.2001 at about 3 p.m., has been fixed for

the purpose of enquiry u/s 145(1) of the Code of Criminal Procedure and therefore, the Revision petitioner and Third Respondent have been

directed to appear for an enquiry by the First Respondent/Authority concerned.

If the proceedings of Section 145 of the Code of Criminal Procedure, orders are drawn in the presence of parties and if one side is not

present, although even represented through a common counsel, then, the presumption is that all the parties have knowledge.

In the impugned order dated 5.11.2012 of the First Respondent, it is categorically mentioned that as per Section 145(1) of the Code of

Criminal Procedure, summons have been served on two parties for the date of 8.6.2012 and the two parties and their counsels have appeared

before the First Respondent at about 3 p.m., on 18.6.2012 Thereafter, it appears that ''B'' party in the enquiry has sought time for filing of the

written statement and acceding to the said request, enquiry has been adjourned by the First Respondent and on 6.8.2012 on behalf of ''B'' party,

on 6.8.2012 a sworn affidavit has been filed, wherein a request has been made for dismissing the Petition of the Third Respondent.

Notwithstanding the fact that on the side of the Petitioner, a plea has been taken before this Court that summons for the enquiry has not been

served by the First Respondent to the Revision petitioner and also the said summons has not been affixed at some conspicuous place or near the

subject of dispute, the Learned Government advocate (Criminal Side) appearing for the First and Second Respondent submits that the petitioner

has refused to receive the summons and therefore, it has been affixed. Furthermore, in the impugned order dated 5.11.2012 the First Respondent

has clearly stated that of summons being served, two parties have appeared on 8.6.2012 at about 3 p.m., along with their counsels and ''B'' party

has sought time to file written statement in the mater in issue and therefore, it is not open to the petitioner to take a contra plea that summons has

not been served to him for the purpose of enquiry on 8.6.2012. As such, this Court comes to an inevitable conclusion that in view of the

appearance of two parties in connection with the enquiry on 8.6.2012 at about 3 p.m., along with other advocates that it is not essential in the

present case to examine the serving of summons by the concerned staff. Also, the refusal to receive summons and the affixture at some

conspicuous place at or near the subject of dispute is a proper service in the eye of Law, as opined by this Court. Even assuming without admitting

that the serving of summons/notice has not been effected by the First Respondent, the same in law is only a mere irregularity which can be cured

u/s 465 of the Code of Criminal Procedure if the party professing to be affected/aggrieved has the knowledge of the proceedings.

In the instant case on hand, the petitioner has appeared before the First Respondent on 8.6.2012 at about 3 p.m., along with another party and

their advocates has also made their appearance and therefore, it cannot be said that the summons/enquiry dated 8.6.2012 has not been served on

the petitioner. At the extreme failure to serve Notice/failure to serve Summons, will not render proceedings u/s 145 of the Code of Criminal

Procedure, void if the parties had made their presence very much. As such, no prejudice is caused to them in the case on hand, in the considered

opinion of this Court.

In the impugned order dated 5.11.2012 passed by the First Respondent, there is a mention about the Third Respondent''s Petition, wherein he

has stated that out of the total 50 cents of land, a small portion has been encroached upon the petitioner for the past 22 years and further, that he

has not paid any rent and has deceived him. Further, it is mentioned that the Revision petitioner (''B'' Party-Respondent before the First

Respondent) has also encroached upon the property and also makes an endeavour to encroach other portion and also has encroached upon a

portion of land in 50 cents etc. Therefore, in the impugned order, the disputed portion is mentioned by the First Respondent. At this stage, it is to

be remembered that out of the large extent of 2662 Sq. feet in S. No. 632/1, the subject of dispute area is only 50 cents or portion thereof. In

short, in the impugned order dated 5.11.2012 a small portion being encroached upon has been made mention of by the Third Respondent, which

has been extracted by the First Respondent in his order/proceeding dated 5.11.2012. Therefore, the contra plea taken on behalf of the petitioner is

not accepted by this Court.

The case of the Third Respondent is that the petitioner (''B'' Party) has made an endeavour to trespass in the land in his possession and a

complaint has been lodged on 11.5.2012 before Theni - Allinagar Police Station and on 14.5.2012 a Petition has been given before the First

Respondent and a preliminary order dated 8.6.2012 has been passed by the First Respondent requiring the Third Respondent and the Revision

petitioner to appear before him on 18.6.2012. Also, that the Revision petitioner has filed a written statement, only after scrutinising and analysing

the affidavits and documents filed by the parties to the dispute, the First Respondent has passed the impugned final order dated 5.11.2012 u/s

145(4) and (6) of the Code of Criminal Procedure. Conveniently, the Revision petitioner has not stated the extent of land in his possession from an

attempted trespass dated 10.5.2012 and a complaint being lodged on 11.5.2012 within two months viz., on 8.6.2012 a preliminary order requiring

the parties to appear for enquiry has been passed by the First Respondent. Indeed, the impugned order dated 5.11.2012 refers to the preliminary

order dated 8.6.2012 of the First Respondent. The arrangement made u/s 145 of the Code of Criminal Procedure is only an interim arrangement

to prevent Breach of Peace and the Executive Magistrate ordinarily cannot extend his scope of enquiry beyond the determination of actual

possession of a party. Furthermore, he is also not to allow the parties to agitate the complicated question of title concerning the subject matter of

dispute. In a given case, if a Executive Magistrate consider questions/aspects relating to title where such considerations are necessary in order to

decide effectively the question of possession or to supplement the other evidence as to possession at the time of passing of the final orders in

question, the same is not illegal, in the considered opinion of this Court.

On going through the impugned order dated 5.11.2012 passed by the First Respondent, this Court opines that the First Respondent has only

observed that on perusal of the documents, evidence and other side argument, the disputed place belongs to Third Respondent, etc. As such, it

cannot be said that the First Respondent has usurped the powers of Civil Court, when he has come to the conclusion that the disputed subject of

land belongs to the Third Respondent. Further, it cannot also be said that the First Respondent has decided the question of title in respect of the

disputed place/land in issue. In regard to the injunction suit O.S. No. 16 of 2012 between the parties, it is to be pointed out that no injunction has

been granted and originally, the suit has been dismissed for default. Later, it has been restored and posted to 23.1.2013.

Admittedly, no Civil Suit has been filed between the parties in respect of the subject matter of land seeking the relief of declaration of title to

the property in question or for such other relief as deemed fit and proper. In a suit for injunction incidentally or ancillary the issue of title relating to

a property can be gone into by a Court of Law. Only in a complete and comprehensive suit for declaratory relief touching upon the title/possession

of the party between the parties, the entire gamut of issues/points for determination/rumination can be gone into by the competent Civil Court in a

threadbare fashion and also in a qualitative and quantitative manner, so as to bury the hatchet once and for all. In that proceedings, it is open to the

parties to the litigation to adduce necessary oral and documentary evidence and to examine the concerned witnesses on their behalf to substantiate

their version of the case.

It is to be borne in mind that the possession referred to in Section 145 of the Code of Criminal Procedure is the actual possession at the time

of commencement of proceedings and not the possession at the time of passing of the order by the Executive Magistrate.

At the risk of repetition, this Court points out that in the instant case on hand, it cannot be said that no preliminary order has been passed by

the First Respondent. In the Official memorandum dated 8.6.2012 though in the subject portion, it is mentioned as concerning the enquiry

(summons being sent) yet on going through the said order dated 8.6.2012 passed by the First Respondent, this Court without hesitation holds that

the said order satisfies the condition of the statement that the Magistrate is satisfied as to the existence of dispute likely to cause Breach of Peace,

grounds of his satisfaction, the correct description of property in dispute and the statement of persons concerning such dispute and directing the

person named in the order to attend the Court in person or by a Pleader on a specified time and to put in a written statement in respect of factual

possession of the subject of dispute. In fact, the said order dated 8.6.2012 is only a preliminary order as concluded by this Court. In short, it

satisfies the ingredients of Section 145(3) of the Code of Criminal Procedure and the order dated 8.6.2012 passed by the First Respondent is only

a preliminary order and not a mere bald summons bereft of qualitative and quantitative details.

It cannot be gain said that this Court exercising its Revisional Jurisdiction in the Revision Petition cannot go into sufficiency or otherwise of the

materials on the basis of which the First Respondent/Executive Magistrate''s satisfaction in passing the impugned order dated 5.11.2012 has been

based in regard to the existence of Breach of Peace or passing the interim order of arrangement to prevent Breach of Peace or a dispute likely to

cause a Breach of Peace exists concerning in land or water etc.

In fact, the question of possession is to be decided with reference to a specified point of time viz., date of initial order or in the case of forcible

dispossession headed within two months next presiding such order or in the instant case, the preliminary order passed by the First Respondent is

dated 8.6.2012 and the petitioner is alleged to have made an encroachment on 10.5.2012 which has necessitated the Third Respondent to lodge a

complaint on 11.5.2012 before Theni - Allinagar Police Station and also on 14.5.2012 a Petition has been given by the Third Respondent before

the First Respondent and from the date of preliminary order passed by the First Respondent on 8.6.2012 the date of alleged trespass is 10.5.2012

within two months and therefore, it cannot be said that it is out of time (beyond Limitation Period) and there has been a negation in this regard. In

short, the First Respondent has passed the final order on 5.11.2012 after providing due opportunities to the parties by adhering to the principles of

natural Justice. In view of the fact that the First Respondent has exercised its discretion in a judicious manner while passing the impugned final

order dated 5.11.2012 in regard to the question of possession on the basis of available evidence and accordingly held that the petitioner has

unlawfully encroached upon the property in question and further directed that the petitioner should handover Land/Encroached place to the Third

Respondent and that the Police will have to take proper action for removing the encroachment etc., which docs not suffer from any serious material

irregularity or patent illegality in the eye of Law warranting interference in the hands of this Court sitting in revision. Looking at from that

perspective, the Criminal Revision Petition fails. In the result, this Criminal Revision Petition is dismissed. Consequently, the connected

Miscellaneous Petition (MD) No. 1 of 2012 is also dismissed. In view of the pending Civil litigation in O.S. No. 16 of 2012 on the file of the

Learned District Munsif, Theni, between the parties, liberty is granted to them to redress their grievances before the appropriate Court and further,

they are directed to pursue the pending suit to its logical end, if they so desire/advised. It is made abundantly clear that the pendency of O.S. No.

16 of 2012 on the file of the Learned District Munsif, Theni, will not fetter/preclude the parties to file a complete and comprehensive Civil Suit

seeking appropriate declaratory and other reliefs in respect of the title of the property in issue in the manner known to Law and in accordance with

Law, if they so desire/advised.