- (1.) THE above criminal revision case is directed against the order passed by the Executive Magistrate-cum-Revenue Divisional Officer, Madurai as per his proceeding in M.C.No.818 of 1996 dated 2.2.1997.
(2.) TRACING the history of the case, it comes to be known that on account of dispute among parties classified as ?A?, ?B? and ?C? regarding possession of a house located at D.No.27,Vaidyanathan Street,Shenoy Nagar,Madurai likely to cause a breach of peace that existed in the locality and the same having been brought to the notice of the said Executive Magistrate-cum-Revenue Divisional Officer, Madurai by the Inspector of Police, J-2 Mathichiyam Police Station, Madurai City who on complaint registered a case in Crime No.970 of 1996 of his police station on 18.12.1996 and the same having been intimated to the Executive Magistrate-cum-Revenue Divisional Officer, Madurai, the said Magistrate instituted the proceeding in M.C.No.818 of 1996 and passed a preliminary order dated 19.12.1996 under Sec.145(1), Crl.P.C. thereby calling the parties to appear before him either in person or by pleader and to put in their objections in order to decide as to who is or has been in possession of the said house, within sixty days prior to the commencement of the said proceeding. It is further seen that at the request of the complainant/ Inspector of Police, the Executive Magistrate had also appointed a Receiver under Sec.146 of the Criminal Procedure Code to inspect the said house not only to assess as to who is in occupation but also to maintain the said house, pending disposal of the proceeding; that on inspection by the Commissioner it came to be known that two advocates namely Selvam and Nagarajan were in possession of a portion of the said building and on their application, they have also been impleaded in the above proceeding as ?D? party. So far as the contentions of the ?A? party respondents before the Executive Magistrate are concerned, that the ?A? party purchased the property in question from one Palanichamy Thevar by means of a sale deed dated 27.4.1992 and having taken possession of the same on the same day, they continued to be in possession of the said property effecting the payment of Corporation Tax and thereafter from 23.10.1996 onwards, leasing out the same to ?D? party advocates as per a registered lease deed dated 23.10.1996 and thus they are in constructive possession of the said property. So far as the contentions of the ?B? party are concerned, the property in question, which was originally belonging to one Ratnaveluchami Thevar, fell to the share of his son Palanichamy in the partition and the said Palanichamy, through his power of Attorney Agent namely Mamalla Mahendran had sold the said property in favour of one Padmavathi Nachiyar on 24.10.1991 for valid consideration and herself effecting the payment of the Corporation taxes mortgaged the said property in favour of one Pondy and on redemption of the mortgage on 30.6.1994, the said Padmavathi Nachiyar took possession of the property, from whom the ?B? party Radhakrishnan purchased the same on 1.7.1994; that the said Radhakrishnan leased out the said property in favour of ?C? party and the ?C? party in turn sub-let the portion of the said building to the Prohibition Enforcement Wing Police from 1.3.1995 onwards with the consent of the ?B? party; that on abolition of the said police wing by the Government on 30.9.1996, they vacated the portion occupied by them and thereafter the said portion had been let out to the Hindu Religious and Charitable Endowments Department, who kept their articles inside and locked the said portion; that breaking open the said lock on 28.10.1996, the ?A? party and ?D? party respondents forcibly occupied the same and that a complaint had been lodged with the police on the same day. Hence, the ?B? party and the ?C party are only in lawful possession of the said house. This stand taken by the ?B? party has been adopted by the ?C party also. It further comes to be seen that there had been complaints and counter complaints by parties against each other and they have been taken on file the complainant police as P.I.R.No.142 of 1996 and 146 of 1996, dated 29.10.1996; that the prohibition wing police while vacating the said building have entrusted the same with Radhakrishnan of ?B? party on 30.9.1996; that the ?A? party has filed a civil suit in O.S.No.57 of 1995 in the court of the Principal District Munsif, Madurai and also filing an application in I.A.No.59 of 1995, obtained an interim order on 11.1.1995, which is still in force; that likewise, the ?C? party has also filed another suit in the same court in O.S.No.2181 of 1996 and they too filing I.A.No.1242 of 1996 have obtained an interim order; that in view of the above suits instituted by them which is pending in the civil court, it is the contention of the ?A? party that the proceeding initiated by the Executive Magistrate under Sec.145, Crl.P.C. is not proper.
(3.) DURING arguments, the learned counsel appearing for the revision petitioners herein would contend that it was Palanisamy Thevar to whom the subject matter originally belonged; that the petitioners herein are the ?A? party to the proceedings; that they purchased the property from Palanichamy Thevar by means of a registered sale deed dated 27.4.1992; that the contention of the ?B? party is that Padmavathi Nachier purchased the said property from one Mamalla Mahendran who claims to be the power of Attorney agent of the said Palanichamy Thevar under a registered sale deed dated 24.10.1991. The learned counsel would further argue that it is ?B? party/respondent No.2 viz., Radhakrishnan is said to have purchased the property in question from the said Padmavathi Nachiyar as per the sale deed dated 1.7.1994; that the said instrument had been executed in Kerala shrouded by suspicious circumstances; that it was a clandestine purchase; that the ?A? party purchased the property directly from the owner; that two Advocates who got impleaded as ?D? party/respondents No.6 and 7 viz., N.Selvam and K.Nagarajan forcibly occupied the premises and put up their board as though they are the tenants of the building; that ?B? party/respondent No.2 Radhakrishnan also with the help of local police and unruly elements started troubling the ?A? party petitioners in order to vacate them by unlawful means and ways; that what prompted in this regard is that the police party themselves were the occupants of the building using it as P.E.W. office and the said occupation was nothing but illegal; that the said police vacated the premises and the ?D? party/ respondents 6 and 7 Advocates occupied the same in the same manner and the other portion is occupied by a local M.P., for his office purposes. The learned counsel for the revision petitioners would continue to argue stating that the ?A? party filed a suit in O.S.No.57 of 1995 on the file of the court of District Munsif, Madurai for permanent injunction along with an Interlocutory Application in I.A.No.59 of 1995 praying for the grant of ad-interim injunction and the same had also been granted on 11.1.1995 pending disposal of the suit; that the above Sec.145, Crl.P.C. proceedings came to be instituted only on 24.2.1997; that the ?C? party/respondent No.5 Arulmozhi says that they got the lease deed and claiming to be lessee, he too filed a suit in O.S.No.2181 of 1996 and had obtained a similar order of ad-interim injunction restraining the ?A? party from interference; that the Revenue Divisional Officer also appointed a Commissioner to inspect the suit locality; that under Sec.145(4), Crl.P.C., no evidence had been recorded by the Executive Magistrate but only on the basis of the affidavits and preliminary objections, the final order had been passed; that without examining the witnesses with due opportunity for the other side also to cross-examine, no proceeding initiated under Sec.145, Crl.P.C. could be decided and if an order without examination of the witnesses is passed, it vitiates the entire proceedings. In consummation of the said points, the learned counsel would cite many judgments reported in various journals and the first of the series of judgments is one delivered in K.Palaniappan and six others v. The Executive First Class Magistrate & R.D.O., Sankari and another , 1989 L.W. (Crl.) 321 wherein it is held: ?Sub-sec.(4) of Sec.145, Crl.P.C. enables both parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced but also is empowered to take such further evidence, if any, as he thinks necessary. The Magistrate, under the new Code (1974) cannot dispose of a proceeding on the basis of affidavits and therefore, the evidence of witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to enable parties to adduce evidence reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a duty to summon such witnesses as may be required by either party. This procedure prescribed under Sub-sec.(4) must be followed for it is mandatory and the oral evidence adduced will have to be recorded and documents properly proved according to the rules of evidence. After the production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily implied discussion of the evidence placed before him.? ;