@JUDGMENTTAG-ORDER
Anna Chandy, J.@mdashThis is a revision against a preliminary order u/s 145, Criminal procedure Code, passed by the Executive First Class Magistrate, Trivandrum. The property in respect of which the order was passed is 25 cents comprised in Sy. No. 1916/B and C. The petitioner had filed O.S. No. 733 of 1951 of the Attingal Munsiff''s Court and obtained a decree for redemption of these items along with others against the counter-petitioners. These items were items 2 and 3 in that suit. The main contention raised by the counter-petitioner in that suit was that items 2, 3 and 5 were not included in the plaint mortgage and hence not redeemable. It was after repelling that contention that the decree for redemption of all the items was passed. The defendant appealed against the decree. The only point that was agitated in appeal was about the non-inclusion of items 2, 3 and 5 in the mortgage and after an elaborate discussion of the oral and documentary evidence, the court upheld the decree of the Munsiff and held that the defendants were in possession of the plaint schedule items 1 to 5 under the mortgage and confirmed the decree for redemption. In execution of that decree all the items including the disputed items were delivered over to the revision petitioner on 28-1-1958 and the copy of that delivery list has been proved and filed as Ext. P. 7 in this enquiry. The counter-petitioner then filed a criminal case as C.C. No. 234 of 1958 against the petitioner and others alleging that on 20-4-1958 they trespassed into the property, destroyed the bunds and ploughed the field and when the complainant protested, kept him in wrongful restraint. The accused denied the charge and contended that they were in possession of the property in pursuance of the court delivery. The amin who effected the delivery was examined and the delivery list and other records evidencing possession of the accused were filed. The learned Magistrate finding that the accused were in possession held that the complainant had no right to interfere with the agricultural operations carried on by the accused. He, therefore, acquitted the accused. The Judgment was delivered on 4-2-1959 and a copy of it is marked as Ext. D1 in this enquiry. During the pendency of the criminal case, on 28th July 1958 the counter-petitioner filed a petition before the Executive First Class Magistrate, Trivandrum, alleging that subsequent to the ploughing of the land by the revision petitioner and others in April 1958, he cultivated the field and the revision petitioner was attempting to trespass into the property and harvest the crops forcibly and prayed that necessary steps may be taken against the counter-petitioners. The petition was forwarded to the police for necessary action and report. Though the Sub-Inspector of Police reported that there was dispute between the parties about the possession of the property and proceedings u/s 145 had to be started for preventing the breach of the peace, the Assistant Superintendent of Police to whom the report was sent for counter-signature forwarded it to the Circle Inspector to look into the matter personally and report whether the present situation demanded initiation of proceedings u/s 145 of the Criminal Procedure Code. The Circle Inspector of Police reported that the situation did not warrant the initiation of proceedings u/s 145 as the counter-petitioner was in possession of the paddy field and had already cultivated it. It was also stated in the report that an earlier report to the same effect had been filed. Thereupon the Assistant Superintendent of Police reported to the Magistrate that even though the Sub-Inspector, Kazhakkoottam has suggested action u/s 145, Criminal Procedure Code, the present situation did not warrant it.
2. Thereafter the Magistrate issued notice to the parties to appear. The parties appeared and filed statements and produced the relevant records. The petitioner has also been examined. The judgment in A.S. No. 15 of 1958, the delivery list and the judgment in C.C. No. 234 of 1958 were marked in the case. The petitioner admitted these records but maintained that the decree in that case was for delivery of the properties excluding the particular items in question here and the delivery was also exclusive of those items. The court records clearly establish that the 25 cents in Sy. No. 1916/B and C which are items 2 and 3 therein were actually delivered over to the revision-petitioner. It is also established that the criminal case of trespass into the property was thrown out by the Magistrate on the definite finding that the revision-petitioner was in possession. It was in the face of these facts as well as the report of two responsible police officers that the revision-petitioner had actually raised crops on the land and there was no apprehension of a breach of the peace and as such action u/s 145, Criminal Procedure Code was not called for, that the learned Magistrate found his way to proceed u/s 145 and order attachment of the properties pending the enquiry.
3. Shri T.K. Narayana Filial on behalf of the revision-petitioner contended that in the face of the court delivery and other records evidencing the possession of the petitioner and the report of the police that there was no apprehension of the breach of the peace, the Magistrate had no jurisdiction to initiate proceedings u/s 145. On the other hand the learned counsel for the counter-petitioner contended that in spite of the records to the contrary, the counter-petitioner continued to be in actual possession and therefore the Magistrate had the jurisdiction to start proceedings u/s 145 if he thought such proceedings necessary to prevent a breach of the peace. The learned counsel relied on a Full Bench decision of the Calcutta High Court reported in Agni Kumar Das v. Mantazaddin--XXXII Calcutta Weekly Notes 1173--in support of his contention that a civil court decree and delivery of possession under it are not a bar to subsequent proceedings u/s 145 in respect of the same property. It was held in that case that "the words ''actual possession'' in subsection (1) of section 145, Cr.P.C., mean actual physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings u/s 145 and that the word ''dispute'' in sub-section (1) of section 145, Crl.P.C. means actual disagreement existing between the parties at the time of the proceedings u/s 145, even though the question as to the right of possession has already been decided by a civil court". However I do not think this decision will be of much help in the present case. In the Calcutta case the delivery of property under the decree was only symbolic and it was found that "in spite of the delivery of possession, the judgment-debtors were never dispossessed but remained on in possession". The proposition that proceedings u/s 145 can be started even in a case where the possession was wrongful, e.g., that of a recent trespasser, was also based on the assumption that the possession even though wrongful, had actually passed to the trespasser. I do not understand the above decision as an authority for the position that a mere allegation of "possession" and "dispute" is all that is contemplated u/s 145. In the present case the evidence shows that the petitioner was put in possession under the court delivery. In a subsequent criminal proceedings it was found that the petitioner was in actual possession of the property. The report of the Circle Inspector of Police is also to the same effect.
4. In the face of the records evidencing actual delivery of possession of the property to the petitioner and the report of the responsible police officers that the petitioner has actually raised the crops and there was no apprehension of the breach of the peace, the action u/s 145 is clearly unwarranted, There is no actual dispute about possession and the attempt on the part of the counter-petitioner to move the court on the pretext of one, cannot clothe the Magistrate with the jurisdiction to proceed u/s 145. Hence the order of the learned Magistrate passed u/s 145 of the Code of Criminal Procedure is quashed and the revision petition is allowed.
