A NARAYANAN KUTTY MENON Vs. ELAYAT SEKHARA MENON
HIGH COURT OF KERALA
A.NARAYANAN KUTTY MENON
ELAYAT SEKHARA MENON
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(1.) This revision petition arises out of the final order passed by the Executive First Class Magistrate, Palghat under Sub-s.(6) of S.145 Cr. P. C. On being satisfied that a dispute likely to cause a breach of the peace exists concerning the possession of the property in dispute, the learned Magistrate passed a preliminary order requiring the parties to put in their written, statements of their respective claims as respects the fact of actual possession of the subject matter of dispute and requiring them to put in such documents and affidavits on which they proposed to rely in respect of their claims. Both parties filed written statements, affidavits and documents and after hearing the counsel for the parties the learned Magistrate passed the impugned order.
(2.) It is contended by the learned counsel for the petitioners B party that the affidavits filed by them have not been considered, that only documents of title have been referred to in the order, and secondly the Magistrate has confused between "right to possess" and "actual physical possession". On the other hand learned counsel for the respondents -- 'A' party submitted that there is substantial compliance with the provisions of S.145(4) Cr. P. C., that there was enough material for the learned Magistrate to have come to the conclusion that the A Party is in actual possession and normally there should be no interference with an order passed by the Magistrate under S.145 Cr. P. C. which prescribes a summary procedure for deciding the factum of actual possession to prevent a breach of peace and that the defeated party has always the remedy by way of a suit in the civil court.
(3.) Sub-s.4 of S.145 Cr. P. C. after amendment by Act 26 of 1955 so far as material provides:
"(4). The Magistrate shall then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practical, within a period of two months from the date of the appearance of the parties before him, and, if possible, decide the question whether any and which of the parties was at the date of the order tie tore mentioned in such possession of the said subject."
The affidavits now required to be filed by the parties by the amended Sub-s.(4) of S.145 take the place of oral evidence. The Magistrate, therefore, before deciding the question of possession, has to peruse the statements of the parties as also the documents and the affidavits put in and if the order of the Magistrate does not show that he had considered the affidavits put in by the parties such an order ex facie will be held to be improper as not complying with the mandatory provisions of S.145(4) of the Code.
In this case as the learned counsel for the petitioner has pointed out, there is not even a reference to the affidavits. It is true, that the Magistrate may, if necessary, consider the evidence of title to enable mm to decide the factum of actual possession, but mere proof of title alone will not be proof of actual possession. When no sufficient evidence of possession is produced by the parties, the Magistrate may use the evidence of title to guide and assist his mind in coming to a decision upon the question of possession. So also in a case where the property in dispute admits of no actual, possession or in case in which evidence as to actual possession is equally balanced the presumption of possession which flows from title can be of help for a correct decision of the question of possession. The Magistrate in his final order must give reasons for his decision sufficiently to enable the revisional court to determine whether he has complied with the terms of Sub-s.(4) and directed his mind to the consideration of the evidence adduced before him.;
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