KALI THEVAN Vs. K K GIRIRAJA KALINGARAYAR

JUDGEMENT

(1.) THIS is a petition under Sections 435 and 439 Crl. P. C. , to revise the order of the learned Sub-Collector and Executive First Class Magistrate, Pollachi in M. C. No. 9 of 1959, an application under Section 145 Cri. P. C. A dispute likely to lead to a breach of the peace was reported to have arisen between the A party comprising of two persons Giriraja Kalingarayar and Kadirvel Kalingarayar on the one hand, and the B party, Kali Thevan, on the other, in regard to the possession of lands which initially comprised of 36 acres in S. No. 166/1 of Thimmangutu Village, and 8 acres in S. No. 8/1 of Kumarapalayam village, in Pollachi taluk. Subsequent to the preliminary order, it became apparent that the dispute covered also 9 acres in S. No. 5/1 of Kumarapalayam village. The preliminary order under Section 145 (1) Cri. P. C. was passed on 27. 9. 1959. Both parties filed written statements in respect of their claims. As required by the amendment to Section 145 (1) Cri. P. C. by Act 26 of 1955, affidavits were also filed by the rival claimants. The learned magistrate examined witnesses and then pronounced that the A party was in possession of the property on the date of the preliminary order or within two months thereof before forcible dispossession. He therefore passed an order in favour of the A party. The B party has filed the present revision. I heard the learned Counsel for the petitioner and also the learned Counsel for the respondents.

(2.) THERE is a somewhat involved prior history of the dispute. As far as I am able to gather, the gist of it is this. The disputed lands form a small portion out of about 400 acres of land within the, limits of the Uthukuli Zamindari in the occupation of a number of tenants. (It is alleged, however, that a small extent out of this was pannai land of the Zamindar, that is, lands under his personal cultivation but this matter has not yet been cleared up ). In 1949, sale deeds were obtained from the tenants under which the occupancy rights in this area of 400 acres, passed to the pattagar of Palayakotta, Nallasenapathi Sarkarai Manradiar. This pattagar is the brother-in-law of the zamindar. Two brothers of the Zamindar filed O. S. No. 104 of 1954 in the Sub-Court, Coimbatore against the Zamindar for partition. Their contention was that the sale deeds in favour of the Pattagar, were bogus sale deeds, and that the lands comprised ire the 400 acres should also be made the subject matter of the partition. They impleaded the pattagar as the 12th defendant in that suit. During the pendency of the suit, a compromise was (sic) into on 4. 9. 1959, and two-thirds of these 400 acres, that is, 270 acres and odd were given to the A party. The compromise provided that the plaintiffs (A party) shall immediately get into possession of the1 properties described below with all the standing crops. etc. and that the plaintiffs (A party) shall be entitled to and realise the past rents and profits from out of the lands described below in the schedule from the tenants of the 12th defendant for the period between 1. 4. 1958 to this date, i. e. , 30. 8. 1959. The schedule of property appended to the. compromise decree, includes the three survey numbers now in dispute. The contention of the A party is that in pursuance of the compromise, decree they entered into peaceful possession of 270 acres on 5. 9. 1959 and that on the night of 5. 9. 1959 the B party without proper basis lodged a criminal complaint of trespass against the A party. A police sub-inspector with a posse of Armed police then visited the locality, and found that a case of criminal trespass could not be made out, but the matter could be suitably taken up for action under Section 145 Crl. P. C.

(3.) THE case of the B party was this. In View of the impending tenancy legislation, bogus transfers were obtained of some of the lands by taking sale deeds in favour of the pattagar of Palayakottai from tenants at the instance of the zamindar, who was the brother-in-law of the pattagar. The sale deeds were repudiated by notice sent by the B party on 5. 1. 1959, Kali Tevan got a specific extent under lease, out of the lands covered by the sale deeds. Other tenants have obtained similar leases. In this way, Kali Tevan claimed Ac. 22. 54 cents under a lease from the pattagar in S. No. 166/1. This 22. 54 acres is not included in the dispute, nor is the extent of Ac. 8-50 on base to Ramaswami Konar and Nanja Tevar in dispute. However, there were some other persons who executed sale deeds in 1949. The pattagar granted them leases for one year. Subsequently, on the expiry of the lease they continued to cultivate the lands. Kali Tevan obtained surrenders from them, and cultivated the lands himself. These constitute the disputed lands.