HIGH COURT OF KERALA
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(1.) The final order passed by the Sub-Divisional Magistrate at Quilon in summary Case No. 5 of 1123 on the file of his Court, has given rise to this revision petition. The property involved in that case consists of 2 acres and 96 cents of garden land comprised in Sy. Nos. 8320 and 8321 in Munraoe Island Pakuthy. Regarding the possession of this property there was dispute between the petitioner in Summary Case No. 5/23 on the one side and counter petitioners 1 to 8 on the other. The petitioner who claimed to be in possession of the property filed a petition before the Sub-Divisional Magistrate on 8.12.1121 complaining of disturbance caused to his possession and enjoyment of the property by the counter petitioners. After getting a report from the police on the allegations contained in that petition and on being satisfied that there was dispute between the petitioner and the counter petitioners about the possession of the property and that such dispute was likely to cause a breach of the peace, the Magistrate started proceedings under S. 145 of the Criminal Procedure Code, by passing a preliminary order on 11.1.1123 under sub-s. 1 of that section. The property was also attached and placed in the possession of a receiver appointed by the Court. After considering the statements filed by the opposing parties and the evidence tendered by them, the Magistrate passed the final order on 28.8.1954 under sub-s. 6 of S. 145 declaring possession in favour of the petitioner and forbidding all disturbance of such possession except in accordance with the decision of a competent civil court. Counter petitioners 1 and 5 have filed the present petition seeking a revision of that order.
(2.) The point raised by the revision petitioners is that the Magistrate has acted in excess of his jurisdiction in declaring possession in favour of the respondent after ignoring the possession which the revision petitioners had perfected long prior to the period of two months specified in the first Proviso to sub-s. 4 of S. 145. It is point out that the learned Magistrate was definitely of the view that the material date on which the respondent had to prove his possession is the date on which he filed the petition before the Sub-Divisional Magistrate complaining about the disturbance of his possession by the revision petitioners and that if he succeeds in proving that he had possession on that date he is entitled to a protection order under sub-s. 6 of S. 145, even if he had been out of possession for a period of more than two months prior to the date of the preliminary order under sub-s. 1. That the Magistrate was of that view, is clearly borne out by the following observations made by him in the course of the impugned order:
Since the dispute arose in 1121 Karkatagam and Ext. C petition was filed in Karkatagam by the petitioner, the possession after that date need not be taken into consideration; if the counter petitioners trespassed after that date the property and committed waste, that would not give them any right.
(3.) The point raised in this revision petition has to be considered in the light of the provisions contained in sub-ss. 1 and 4 of S. 145 of the Criminal Procedure Code. Sub-s.1 states the circumstances under which a competent Magistrate can start proceedings under that section by passing a preliminary order. That sub-section runs as follows:-
Whenever a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof with the local limits of his 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, within the time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
Sub-s. 4 deals with the subsequent inquiry to be conducted for the purpose of ascertaining which of the opposing parties was in possession of the property at the material time. The material time is clearly indicated by the sub-section read along with the first proviso to it. The sub-section and the proviso runs as follows:-
The Magistrate shall then, without reference to the merits or the claims of any such 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 respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:.
What the sub-section requires is that the Magistrate should, if possible, decide whether any and which of the parties was, at the date of the order before mentioned, in such possession of the said subject. The order referred to is undoubtedly the preliminary order passed under sub-s. 1. By the Proviso to sub-s. 4 the Magistrate is empowered to ignore the effect of forcible and wrongful dispossession of any parties to the controversy if such forcible and wrongful dispossession had been within a period of two months prior to the date of the preliminary order, and to hold that the party so dispossessed had been in possession on the date of the preliminary order. The provision is clear and definite and there is no ambiguity about it. Going by the strict and literal meaning of the provision, it is clear that the Magistrate has no jurisdiction to pass a protection order under sub-s. 6 in favour of a party who has been out of possession of the property in dispute for a period of more than two months just before the date of the preliminary order.;
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