@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashThis Criminal Revision is directed against the order, dated 06.09.2004, passed in M.C. No. 106/99, on the file of the
Sub Divisional Magistrate, Karaikal, u/s 145 of the Code of Criminal Procedure, by and which the Sub Divisional Magistrate, held that the
respondents herein are entitled to retain the possession of the disputed area, until they are evicted by competent Civil Court, as per law.
2. The learned Counsel appearing for the Criminal Revision Petitioner would contend that the Sub Divisional Magistrate has decided the M.C. No.
106/99 beyond his jurisdiction, and against the verdict of the Civil court. The learned Counsel for the revision petitioner further contended that the
Sub Divisional Magistrate cannot decide as to, who is in possession of the property, since the same has to be decided by the Civil Court and as
per the impugned order, the Executive Magistrate has held that the respondent herein are in possession of the property, against law. In support of
his contention, the learned Counsel relied on the decisions 1. V. Jayachandran @ Chandran v. The Sub-Divisional Manager and Ors. reported in
2002 (1) MWN (Cr.) 110. 2. Shanmugham and Anr. v. The Inspector of Police (Law and Order), Gobichettipalayam and Ors. reported in 1997
(2) MWN (Cr.) 346.
3. In the decision V. Jayachandran @ Chandran v. The Sub-Divisional Manager and Ors. reported in 2002 (1) MWN (Cr.) 110, this Court has
held as follows:
9. It is admitted that the fourth respondent filed a suit with reference to the same property before Sub Court and at a later point of time, the
petitioner himself filed a separate suit for permanent injunction with reference to the very same property. Only thereafter, the first respondent
Executive Authority has issued the preliminary order calling upon the parties to appear before him and file the written statement. It is settled
position of law that when once the Civil Court had taken note of the dispute between the parties with reference to the declaration or possession,
then it is not open to the Executive Authority to entertain any application. Further more, to invoke Section 145 of Criminal Procedure Cods, there
should be a report from the competent police officer alleging that there was any threat to law and order or there is any possibility of breach of
peace in that area....
4. In the decision Shanmugham and Anr. v. The Inspector of Police, (Law and Order), Gobichettipalayam and Ors. reported in 1997 (2) MWN
(Cr.) 346, it has held as follows:
5...But, however the ultimate order passed by him on possession cannot go against the finding rendered by the Civil Court. The best thing the
Executive Magistrate should have done on the facts of this case is to respect the finding rendered by the Civil Court in C.M.A. No. 13 of 1990
and protect ''A'' party''s possession and not that of ''B'' party''s.
5. Per contra, the learned Counsel appearing for the respondents 1 and 2 would contend that the Sub Divisional Magistrate has passed the order
in M.C. No. 106 of 1999, only pursuant to the Order dated 03.05.1991 made in A.S. No. 49/89 on the file of the Additional District Judge,
Pondicherry at Karaikal and according to him, the impugned order is not against law. In support of his contention, the learned Counsel for the
respondents 1 and 2 relied on the decision Ranbir Singh Vs. Dalbir Singh and Others, , wherein the Honourable Apex Court has held at page
number 1502 as follows:
9...Keeping in view the limited scope of the proceeding u/s 145, Cr.P.C. these questions were not material for determination of the main issues in
the case. The Court, while dealing with a proceeding u/s 145, Cr.P.C., is mainly concerned with possession of the property in dispute on the date
of the preliminary order and dispossession, if any, within two months prior to that date; the Court is not required to decide either title to the
property or right of possession of the same. The question for determination before the High Court in the present case was one relating to the
validity or otherwise of the preliminary order passed by the learned Sub-Divisional Magistrate u/s 145(1) Cr.P.C and sustainability of the order of
attachment passed u/s 146(1) Cr.P.C. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the
matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent
injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been
filed by respondent No. 1. The suits and the interim order are pending further consideration before the Civil Court.
6. In this criminal revision, it is not in dispute that the first respondent herein had filed the suit in O.S. No. 111/87 on the file of the Principal District
Munsif, Karaikal, for declaration of his right and consequential injunction in respect of the suit property, the same was dismissed by the learned
Principal District Munsif, Karaikal, by his Judgment, dated 31.07.1989. Aggrieved by which, the first respondent preferred an appeal in A.s. No.
49/89 on the file of the Additional District Judge, Pondicherry at Karaikal.
7. Considering the oral and documentary evidence recorded and on hearing the arguments of both sides, the appellate court held by its Judgment
that the first respondent herein is entitled to an injunction against the revision petitioner and another, in respect of 2 1/2 mahs of nanja land. The
court has further held that the appeal in respect of the claim of possession and enjoyment of fishing right in the pond Ananthakulam was also
allowed, until the license would be cancelled or revoked by lessor Selvaraju and others. In the said Judgment, the Additional District Court,
further, ordered that the first respondent herein is not entitled to any injunction against the revision petitioner G. Kalaimani and another in respect of
other two ponds described in the plaint as Sambukulam and Kuttakulam. As per the decision of the Civil Court, namely, the Additional District
Court, Karaikal, by Judgment, dated 03.05.1991, made in A.S. No. 49 of 1989, it has been further held that in the event of any dispute over the
extent of the three ponds, the parties to the said appeal would be entitled to file application for appointment of Commissioner for inspection to
locate and find out actual extent of each of the pond and that the order was passed without prejudice to the rights of other respondents therein.
With that findings, the appeal preferred by the first respondent herein was allowed on the aforesaid terms and conditions. Subsequently,
Anthonisamy, the appellant in A.S. No. 49/89 filed an Interlocutory Application in I.A. No. 69/93, under Order 26 Rule 9 of the Code of Criminal
Procedure for appointment of an Advocate Commissioner, seeking for a direction to inspect the suit property to measure the same, so as to locate
and identify 2 1/2 mahs of land, for which he was entitled to be in possession of the property, and accordingly, Advocate Commissioner was
appointed.
8. It is seen that after inspecting the property, the Commissioner filed his Report. Considering the same, and the arguments advanced by both
sides, the learned Additional District Judge, Pondicherry at Karaikal, by his order, dated 30.04.1996, passed in I.A. No. 69/93 in A.S. No.
49/89, held that the Commissioner had certified that there was no such separate three ponds and hence, the court was of the view that it was not
possible to locate and identify Ananthakulam alone and the 21/2 mahs of nanja land in the total extent of 10 mahs, could not be demarcated and
with the above finding, the said Interlocutory Application was dismissed by the learned Additional District Judge, Pondicherry at Karaikal.
Subsequently, on petition, the impugned order in M.C. No. 106/99 u/s 145 of the Code of Criminal Procedure was passed by the Sub Divisional
Magistrate, Karaikal. The above stated facts are not in dispute in this criminal revision.
9. The Sub Divisional Magistrate has held in the impugned order, dated 06.09.2004 in M.C. No. 106/99 that the respondents 1 and 2 herein were
entitled to retain their possession of the disputed area, until they are evicted by the competent Civil Court, as per law. It is not in dispute that the
competent Civil Court, namely, the Additional District Court, Pondicherry at Karaikal, has decided that the first respondent is entitled to 2 1/2
mahs of nanja land, out of 10 mahs of land, but as per the order, dated 30.04.1996, passed in I.A. No. 69/93 in A.S. No. 49/89, it has further
held that as per Commissioner''s Report, Ananthakulam, as stated by the first respondent herein could not be identified and demarcated out of the
said 10 mahs of land.
10. As contemplated under per Section 145 of the Code of Criminal Procedure, whenever an Executive Magistrate is satisfied from a report of a
police officer or upon other information that a dispute is likely to cause breach of the peace, concerning with any land or water or boundaries
thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties
concerned to such dispute to attend his Court in person or by pleader, on a specified date and time and to put in written statements of their
respective claims in respect of the fact of actual possession of the subject matter in dispute and decide the same to prevent breach of peace.
11. It is a settled proposition of law that u/s 145 of the Code of Criminal Procedure, the Executive Magistrate neither decide any question of title
or possession, nor act against the verdict of any Civil Court.
12. Here in this case, as contended by the learned Counsel for the revision petitioner, it is seen that the Sub Divisional Magistrate, has passed the
order, even without a complaint from any police officer as contemplated u/s 145 of the Code of Criminal Procedure, and also held the possession
of the property in favour of the respondents 1 and 2 herein and passed the impugned order against the finding of the order, dated 30.04.1996,
passed in I.A. No. 69/93 in A.S. No. 49/89, on the file of the Additional District Judge, Pondicherry at Karaikal. Hence, as contended by the
learned Counsel for the appellant, I am of the view that the impugned order has been passed by the Sub Divisional Magistrate beyond the purview
of Section 145 of the Code of Criminal Procedure.
13. As per the order, dated 30.04.1996, made in I.A. No. 69/93 in A.S. No. 49/89, the Advocate Commissioner, after inspecting the property
had submitted his report, dated 29.04.1994, before the Additional District Court of Pondicherry at Karaikal as follows:
Commissioner inspected the property on 21.04.1994, after issue of notice to the parties who were present. The water had dried up and the
landscape was visible. Water was stagnant in three locations which gave on appearance of ponds. But there was no in-let or outlet for the ponds
with any other infrastructure to call at as a pond. Local enquiry by the Commissioner resulted in information that the entire property was called
Ananthakulam. As per the decree, the suit property is of an extent of 2 1/2 mahs and the nanja portion is situate on the western side of the entire
property. The warrant was only to identify Ananthakulam. There is no pond in an area of 2 1/2 mahs. Hence, the Commissioner submitted that
unless the exact location of Ananthakulam is determined by the court, it is not possible to allot any portion to the petitioner.
14. It is seen that the suit in O.S. No. 111/87 was filed in the year 1987 and as per the Judgment, dated 03.05.1991, passed in A.S. No. 49/89,
the Civil Court has held that the first respondent herein is entitled to be in possession of an extent of 2 1/2 mahs of nanja land, out of 10 mahs, but
as per order, dated 30.04.1996, passed in I.A. No. 69/93, in the said appeal, without considering the ends of justice, the court dismissed the
application, merely on the ground that the Advocate Commissioner could not identify the property. The trial court could have given further
opportunity to the parties for taking steps to inspect the suit property, again by the Advocate Commissioner, with the help of Taluk Surveyor, so as
to take measurements of the property at the appropriate time, when the water level is low, in order to measure the property, so as to give a quietus
to the dispute, but the court has simply dismissed the application on the aforesaid grounds.
15. As per the latin maxim, ""ubi jis ibi remedium"", a cordial principle of jurisprudence, where there is a right, there is a remedy. Here, in this case,
the Additional District Court of Pondicherry at Karaikal, has declared certain rights with regard to the property in favour of the first respondent.
But, pursuant to the same, when the Interlocutory Application in I.A. No. 69/93 was filed, for no fault of the first respondent herein, on technical
grounds, that the Commissioner could not identify and demarcate the property of 2 1/2 mahs out of 10 mahs, the court below has dismissed the
application, which would not meet the ends of justice.
16. As discussed earlier in this order, the impugned order passed by the Sub Divisional Magistrate, Karaikal is beyond the purview of Section 145
of the Code of Criminal Procedure. Therefore, this Criminal Revision Petition is allowed and the impugned order, dated 06.09.2004, made in
M.C. No. 106/99 on the file of the Sub Divisional Magistrate is set aside. However, in the interest of justice, based on the maxim, '' ubi jus ibi
remedium, the Additional District Court, Pondicherry at Karaikal is directed to provide opportunity to the parties to A.S. No. 49/89 on its file, to
take steps for demarcating the property, as per the Judgment, dated 03.05.1991, rendered by the court below.
17. With the above direction, the criminal revision is allowed. Consequently, connected Crl.M.P. No. 10839 of 2004 is closed.
