Decided on March 06,1967



- (1.) B Party No. 2 in M. C. 15 of 1966 on the file of the Executive First Class Magistrate of Malappuram is the revision petitioner. The dispute relates to 2 acres and 55 cents of pararaba in R. S. 324/10 of Athavanad Village, Tirur Taluk. A Party is the jenmi of the property. According to the B Party, the property was taken on lease from A party by B party No. 1, from whom the leasehold right was taken on assignment by B Party No. 2. The rent payable to the A party is stated to be 75 paras of paddy and Rs. 40 per annum. It is further alleged that A party had admitted in the assignment deed No. 796/64 dated 16-6-1964, that a lease was given to B party No. 1 in respect of 4 acres 83 cents of land belonging to them in R. S. 346. The A party has also admitted the possession of the B party in O. S. 202/64 which was a suit filed by the A party and her son jointly with B party No. 1. B party No. 2 was later on impleaded in the suit as additional 4th plaintiff. The suit is for an injunction to restrain the defendants who were asserting title to the property, from entering upon the property. The possession of B party No. 1 is admitted by A party in the affidavit accompanying the injunction application. Subsequently, to defeat the rights of B party No. 2, the A party changed her stand and got B party transposed as defendants 5 and 6 on the allegation that they have no rights to the property and that B party No. 1 was functioning merely as a care taker without any assignable interest in the property. Complaints of theft of coconuts were preferred by B party No. 2 to the Sub Inspector of Police, Kattiparuthy on 9-4-66 and 8-5-66. A case was charge sheeted before the Sub Magistrate, Tirur on those complaints. Thus according to B party No. 2 there is no dispute of possession and that the possession is undoubtedly with him. In the report of the Circle Inspector also the possession of B party No. 2 has been reiterated. The Petitioner's complaint is that disregarding these aspects the court has initiated proceedings under S.145 Cr. P. C.
(2.) The case of the A party is that the property belongs to the A party Pathumma and her son Abubacker, and ever since the death of her husband they have been in possession and enjoyment as full owners. Since they are permanently residing at Calicut, B party No. 1 was engaged by them to look after the property as a caretaker. He has never possessed any right or interest in the property. Since certain persons attempted to trespass upon the property the A party had to file a civil suit for injunction and in that suit O. S. 202/64 B party No. 1 was also made a plaintiff along with the A party and her son; but later the A party's relationship with B party No. 1 became strained and availing himself of the opportunity certain fictitious documents were executed by B party No. 1. Thus on the assumption that B party No. 1 was holding the property under a lease, an assignment of the lease was made in favour of B party No. 2. Getting information about the fraud played on the A party they proceeded to Tirur and on the advice of their advocate transposed B party No. 1 in the array of defendants. The connections with B party No. 1 were terminated by the issue of a registered notice to him by the A party. The assignment of lease relied on by B party No. 2 was executed during the pendency of O. S. 202/64. According to the A party the said document is fictitious and collusive and has no legal effect. The right sought to be transferred under the document is an illusory one, unsupported by any document. Since the B party tried to make a forcible entry into the property the police were moved by means of a petition and it was on the report of the police that proceedings were taken by the learned Magistrate under S.145.
(3.) Learned counsel for the petitioner (B party No. 2) argues that since possession is already with B party No. 2 there is no need for any proceeding under S.145 and the proper section under which action ought to have been taken was S.107 of the Code. He would contend further on the authority of Skaria Mathai v. Narayanan Nair, AIR 1952 Trav Co. 207 that "Where after a civil suit is filed the plaintiff moves the criminal court to start proceeding under S.145, the proper course to adopt would be to move the civil court itself for appropriate relief even if the disturbance of possession of property occurred after the filing of the suit". I do not think I will be justified in interfering at this stage with the preliminary order passed by the learned Magistrate. It is the definite case of the A party that B party No. 1 was only their caretaker and he had no right to execute an assignment, arrogating himself as the lessee of the property.;

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