FR P M KURIAKOSE Vs. FR V THOMAS

JUDGEMENT

(1.) On a report by the Inspector of Police, Devala in Gudalur Taluk, that a dispute is likely to cause breach of peace concerning certain rights over the maintenance of St. George Orthodox Church, Mangode of Moonanad village in Gudalur Taluk, the learned Revenue Divisional Officer-Sub-Divisional Magistrate, Gudalur, passed a preliminary order under 145, Criminal Procedure Code, calling upon the A party and the B party to put forth their claims before him. Later, after examining the written statements and the claims of the parties, the learned Executive Magistrate came to the conclusion that the B party is in possession and declared that B party is in possession of the said Church and they are entitled to retain possession until ousted by due process of law. That order was challenged in a revision before the learned Sessions Judge. The Sessions Judge, on an assessment of the evidence, set aside the order of the executive Magistrate, and allowed the revision, but declared that A party, the petitioners before me, are in possession and are entitled to retain possession of the said Church.

(2.) In the revision before this Court, the short point that was raised is that the Sessions Judge who is the revisional authority has no jurisdiction to decide the question of possession and he ought not to have passed an order declaring possession with A party and that he should have remitted the matter. This contention appears to be well-founded. The Sessions Judge, while exercising jurisdiction under section 397, Criminal Procedure Code, has no jurisdiction to reassess the evidence and arrive at a finding which is different from that arrived at by the Magistrate, for, under sections 145 and 146, Criminal Procedure Code, the jurisdiction to decide the question of possession vests exclusively with the Magistrate. In Mahabir v. State, (1981) All.L.J. 246, a single Judge of the Allahabad High Court took the view that a revisional Court may no doubt correct any error in the order passed by the Magistrate, but it cannot, however, re-assess the evidence, and on such reassessment arrive at a finding which is at variance with the finding recorded by the Magistrate. I am in perfect accord with this view of the learned Judge. I am therefore, of the view that the Sessions Judge has manifestly clutched at a jurisdiction not vested in him deciding the question of possession which is at variance with the decision of the Magistrate. When he finds that the order of the Magistrate cannot be supported on the question of possession, the proper course which should have been adopted by him is to set aside the order of the Magistrate and remit the matter for a hearing de novo. For that reason, this revision is allowed, the. order of the Sessions Judge and that of the Executive Magistrate are set aside and the matter is remitted to the Revenue Divisional Officer-Sub-Divisional Magistrate, Gudalur, for hearing the petition afresh.