Kumaresan v. The State Of Tamilnadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 17.10.2024 Pronounced on : 20.12.2024

CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and Crl.M.P.(MD)No.9993 of 2024 Kumaresan ... Petitioner Vs.

1.The Sub Divisional Magistrate cum Revenue Divisional Officer, Thirumangalam, Madurai District.

2.The Inspector of Police, Thirupparankundram Police Station (L & O), Madurai District.

3.Sahayaraj ... Respondents Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442 B.N.S.S., to call for the entire records pertaining to the order passed by the first respondent in %.K.vz;.2174/2023/m2 signed on 24.08.2024 and set aside the same.

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For Petitioner : Mr.R.Anand For R1 & R2 : Mr.K.Sanjai Gandhi Government Advocate (Crl. Side) For R3 : Mr.R.Aravindan

ORDER

The Criminal Revision is directed against the order passed by the first respondent dated 24.08.2024 under Section 164 B.N.S.S.

2. The petitioner is shown as A party and the third respondent is shown as B party in the proceedings in %.K.vz;.2174/2023/m2.

3. It is not in dispute that the property comprised in Survey Nos. 332/1A1A and 332/1B1A of Thirupparankundram Revenue Village originally belonged to one K.S.Rajkumar and that the said Rajkumar died on 15.10.2016 leaving behind his widow Dr.Rathina Mala, son George Samuel and daughter Dr.Shalini Andrews.

4. The case of the petitioner is that the said Rajkumar had executed an unregistered sale deed in favour of the petitioner dated 17.09.2008 after receiving adequate consideration, that the legal heirs of the said Rajkumar 2/28

had promised the petitioner to execute another registered sale deed, that after the death of the said Rajkumar, his legal heirs did not make any claim from the petitioner, that the petitioner has obtained possession from the said Rajkumar at the time of his purchase itself and has been in possession and enjoyment of the same, that the third respondent had illegally tried to interfere with the petitioner's peaceful possession and enjoyment of the property and the petitioner came to understand that the third respondent with an intention to illegally grab the property had created forged power of attorney deed documents, that the third respondent and his associates had illegally entered into the property on 06.05.

2024 and brutally attacked the petitioner and his son, for which, the petitioner has made a complaint to the Inspector of Police, Aastinpatti Police Station, Madurai District but there was no action and that the petitioner has then filed two civil suits on the file of the Vacation Court, Madurai claiming permanent injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment of the suit property and the same are pending.

5. The case of the third respondent is that after the death of the said Rajkumar, his widow, daughter and son have jointly executed a registered 3/28

power of attorney deed in favour of the third respondent on 01.12.2023 and nominated him to take care of the property in dispute, that the said George Samuel/son of the said Rajkumar, who is in United States of America, has executed a power deed dated 09.01.2024 giving power to deal with his share over the property, that the said Rathina Mala and her daughter Shalini Andrews, who are the medical practitioners, are now settled at London, that the petitioner taking advantage of the original owners still in foreign countries created a document dated 17.09.2008 by forging the signature of the original owner K.S.

Rajkumar, that the said Rajkumar was not at all available in India at the relevant point of time as he was with his daughter at London, that the petitioner has been claiming title and possession over the property in dispute on the basis of the said forged document and therefore police complaint came to be lodged by the wife of the said Rajkumar before the Commissioner of Police, Madurai and since no action was taken, she filed a writ petition in W.P.(MD)No. 4185 of 2024 in which police enquiry was directed to be concluded within the time fixed, that the police has informed this Court in the writ petition filed in W.P.(MD)No.

report by relegating the parties to civil Court, that the said Shalini Andrews has filed a petition before the Commissioner of Police to reopen the enquiry pertaining to her complaint along with material records to conduct further enquiry and that the same was pending.

6. It is not in dispute that on the basis of the complaint and counter complaint given by the petitioner as well as the legal heirs of the said Rajkumar, the second respondent has referred the matter to the first respondent in terms of Section 164 B.N.S.S., 2023 (under Section 145 Cr.P.C.) for adjudication, that the first respondent has conducted enquiry and passed the impugned order dated 24.08.2024 holding that the legal heirs of the deceased Rajkumar are having title over the property and that the petitioner had made encroachment and directed the petitioner to remove the encroachments by himself on or before 24.09.2024, failing which, directed the police authorities to initiate criminal action against him. Challenging the above said impugned order, the present revision came to be filed.

7. It is admitted by both the petitioner as well as the third 5/28

respondent that the property in dispute originally belonged to the said Rajkumar. According to the petitioner, he purchased the property in dispute from the said Rajkumar vide unregistered sale deed dated 17.09.2008 and obtained possession at that time itself and since then, he has been running an old iron shop in the name of R.K.Metal, whereas, according to the third respondent, after the death of the said Rajkumar, property came to be owned by his wife and children and that since they are in foreign countries, they have executed a power of attorney deed in favour of the third respondent to take care of the property in dispute.

8. Chapter X of Cr.P.C., (Sections 129 to 148 Cr.P.C.,) deal with the maintenance of public order and tranquillity in general and in particular Sections 145 to 148 deal with the disputes as to immovable property. Before entering into further discussion, it is necessary to consider the legal position.

9. In Ram Sumer Puri Mahant Vs. State of U.P., reported in AIR 1985 SC 472, the Hon'ble Supreme Court has held as follows: "When a civil litigation is pending for the property wherein the question of possession is involved and has 6/28

been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceeding should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during dependency of the dispute.

Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached."

10. The Hon'ble Supreme Court in Kunjbihari Vs. Balram and 7/28

another reported in (2006) 11 SCC 66, has held as follows: "2. It is not disputed that the property forming the subjectmatter of proceedings under Section 145 of the Code of Criminal Procedure (CrPC) was the subjectmatter of civil suit between the parties. The rights of the parties have been adjudicated upon by the civil court. An execution petition filed by the respondents herein was also dismissed in view of the adjudication of rights by the civil court based on a compromise. Inasmuch as the rights of the parties stand settled by a compromise decree taken on record of the court during the pendency of civil proceedings inter partes, none of the parties is justified in reagitating the same issue. The parties must respect the decree of the court.

In spite of the civil proceedings having achieved finality, it appears that proceedings under Section 145 CrPC were initiated. The appellant sought the proceedings being dropped in view of the civil court's decree. As that prayer was not acceded to, the appellant approached the High Court under Section 482 CrPC seeking quashing of the proceedings under Section 145 CrPC. The petition has been rejected by the High Court forming an opinion that in spite of the civil court's decree, proceedings under Section 145 CrPC may continue.

3. Having heard the learned counsel for the parties, we are satisfied that the proceedings under Section 145 8/28

CrPC are an abuse of the process of the court in the facts of the present case. The rights of the parties have already been adjudicated upon. If any party claims to be in possession of the property and seeks its protection, it is for that party to approach the civil court and get an appropriate order. The proceedings under Section 145 CrPC cannot be allowed to be continued in the facts and circumstances of the case."

11. It is necessary to refer the decision of the Constitution Bench of the Hon'ble Supreme Court in M.Siddiq (dead) through legal representatives Vs. Mahant Suresh Das and Others [Ram Janmabhumi Temple Case] reported in (2020)1 SCC 1, while explaining the nature and scope of power under Section 145 Cr.P.C., has held as follows: "Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate. Section 145(1) can be invoked on the satisfaction of the Magistrate that "a dispute likely to cause a breach of the peace exists...". The provision relates to disputes regarding possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The 9/28

Magistrate is empowered to call upon the parties to put in written statements in support of their claim to "actual possession". Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination "if possible" to do so. Moreover, the determination is about the factum of possession on the date of the order "without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute". These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims.

The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months of the order, the person so dispossessed is to be taken as the person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision."

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12. It is also necessary to refer the judgment of the Hon'ble Supreme Court in Ranbir Singh vs Dalbir Singh and Others (Crl.A.No.401 of 2002, dated 20.03.2002), wherein, the Hon'ble Supreme Court has held that the Court, while dealing with a proceeding under Section 145 Cr.P.C., is mainly concerned with the possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date and that the Court is not required to decide either title to the property or right of possession of the same and the relevant passage is extracted hereunder:

"On perusal of the relevant papers on the record and on consideration of the contentions raised by learned counsel for the parties, we are of the view that in the context of the facts of this case, the order passed by the High Court setting aside the order dated 11.7.2000 passed under Section 145(1) as well as the order dated 14.11.2000 passed under Section 146(1) Cr.P.C. is unassailable. However, the High Court was in error in dealing with the Revision Petition as if it was exercising appellate jurisdiction. The High Court has dealt with the developments in the case relating to the acquisition of title, the allegations of fraudulent transfers made by Karnail Singh and M/s.Homestead and the circumstances in which the suit was dismissed as withdrawn. Keeping in view the 11/28

limited scope of the proceeding under Section 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 under Section 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 under Section 145(1) Cr.P.C. and sustainability of the order of attachment passed under Section 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.

under Section 145(1) and the order of attachment of the property under Section 146(1) Cr.P.C., leave should be granted to the parties to approach the civil court for appropriate interim order and the civil court should deal with the application for interim order without being influenced by the observations made/findings recorded by the High Court in the impugned judgment. It is ordered accordingly. In order to enable the parties to approach the civil court for interim order and with a view to avoid further complication in the matter, the interim order passed by this Court on 18.01.2002 directing status quo regarding possession of the property in dispute to be maintained shall remain in force for a period of three weeks from today."

13. The learned counsel appearing for the third respondent would also rely on the following decisions:-

(1) 2004 (1) SCC 438 (Shanti Kumar Panda Vs. Shakutala Devi) " ... The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section

(2) of Section 145 having arisen, causing a likelihood of a 13/28

breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property.

The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to sub- section (4) of Section 145, and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot.

time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned. ..... If any party is found to have been forcibly or wrongfully dispossessed within two months next before the date on which the report of a police officer or other information setting the Magistrate in motion was received by him or between such date and the date of order under sub-section (1), then the party dispossessed has to be fictionally treated as one in possession on the date of preliminary order under sub-section (1). The declaration of entitlement to possession under proviso to sub- section

(4) read with sub-section (6) shall be made in favour of such party and the party found to have been so dispossessed forcibly and wrongfully may also be restored into possession. The declaration having been made, it would be for the unsuccessful party to approach the competent court and secure such order as would enable his entering into possession and evicting the party successful in proceedings under Section 145."

(2) AIR 2000 SC 1504 Amresh Tiwari Vs. Lalta Prasad Dubey and another "We are unable to accept the submission that the principles laid down in Ram Sumers' case would only 15/28

apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue."

14. Bearing the above legal position in mind, let us consider the facts of the case on hand.

15. As already pointed out, the petitioner has claimed ownership and possession over the property in dispute through the unregistered sale deed and as rightly contended by the learned counsel appearing for the third respondent, it cannot be stated that title over the property in dispute has passed on to the petitioner through that document, as the same cannot be considered as legally valid document. Moreover, the petitioner has not shown that he has been in lawful possession or settled possession over the 16/28

property in dispute. No doubt, the petitioner has claimed that he has been in possession and enjoyment of the property since 2008. But it is pertinent to note that even according to the third respondent, the petitioner came into possession in 2022 itself. The first respondent in the impugned order has also observed that the petitioner has trespassed into the property in the year 2022 and dumbed old iron articles in that place. It is not the specific case of the third respondent or the first respondent that the petitioner has trespassed into the property two months prior to the order of the first respondent.

16. It is pertinent to note that the petitioner has already filed two civil suits claiming permanent injunction and the same are pending. In both the suits, as rightly pointed out by the learned counsel appearing for the petitioner, the petitioner claimed ownership and possession over the property and by alleging interference, claimed permanent injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment of the property.

17. It is not in dispute that the petitioner has filed a writ petition in 17/28

W.P.(MD)No.14176 of 2024 seeking a writ of mandamus directing the police authorities to take action against the third respondent and legal heirs of the deceased Rajkumar based on his complaint dated 20.06.2024 and this Court, after recording that civil suit in O.S.No.11 of 2024 for injunction is pending, directed the petitioner to workout his remedy in the said civil suit.

18. It is also not in dispute that the third respondent has filed a writ petition in W.P.(MD)No.4185 of 2024 seeking a writ of mandamus directing the Inspector of Police, Thirupparankundram Police Station to take necessary action on his complaint dated 06.12.2023 and conclude the enquiry in connection with C.S.R.No.563 of 2023 dated 08.12.2023 and this Court, taking note of the undertaking given by the learned Additional Public Prosecutor that they will follow the guidelines of the Circular issued by the Director General of Police, Tamil Nadu and the Circular issued by the Additional Director General of Police, Law and Order and conclude the investigation, directed the police authorities to conclude the enquiry and take appropriate action within a period of one month. 18/28

19. The learned counsel appearing for the petitioner would submit that though the pendency of the civil suits was brought to the notice of the first respondent, he has failed to consider the same and passed the impugned order mechanically.

20. As rightly pointed out by the learned counsel appearing for the petitioner, the above suits came to be filed in May 2024 and the first respondent has conducted enquiry in July 2024 and passed the impugned order on 24.08.2024. But the learned counsel appearing for the third respondent would submit that the pendency of the civil suits was not brought to the notice of the first respondent.

21. It is settled law that the first respondent has absolutely no power or jurisdiction to consider and decide about the title to the property or right to possession of the property. But as rightly pointed out by the learned counsel appearing for the petitioner, the first respondent has given some findings about the title and possession of the property in dispute. Moreover, the first respondent has given his finding that the document projected by the petitioner was forged document. Moreover, the first 19/28

respondent in the impugned order has directed the petitioner to remove his encroachments within specified period, failing which, directed the police authorities to take action. Considering the above, as rightly argued by the learned counsel appearing for the petitioner, the first respondent has exceeded his jurisdiction in giving such findings and as such, this Court has no hesitation to hold that the impugned order cannot legally be sustained. But at the same time, as already pointed out, the petitioner has not shown any prima facie material to show that he is in settled possession. As already pointed out, even according to the third respondent and the first respondent, the petitioner has been in possession of the property in dispute from 2022 onwards. Considering the above, this Court is of the view that the civil Court where the petitioner's suits are pending are to be directed to complete the trial and dispose of the case within time stipulated by this Court.

22. At this juncture, it is necessary to refer the decision of the Three Judges Bench of the Hon'ble Supreme Court in Rame Gowda (D) By Lrs Vs. M.Varadappa Naidu (D) By Lrs and another reported in AIR 2004 SC 4609 and the relevant passages are extracted hereunder:- 20/28

".... If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted.

The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner.

of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner.

The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost.

removed by the true owner even by using necessary force..."

23. It is also necessary to refer the decision of the Hon'ble Apex Court reported in (2012) 5 SCC 370 (Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack de Sequeria (Dead) through LRs),

81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.

82. The High Court of Delhi in a case Thomas Cook (India) Limited Vs. Hotel Imperial 2006 (88) DRJ 545 held as under:

"28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be 23/28

disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to 24/28

law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."

24. Considering the above, the trial Court is to be directed to find out whether the plaintiff has right to be in possession in the property in dispute and subject to the result of that finding, the third respondent is at liberty to take possession of the property as per the dictum laid down by the Hon'ble Supreme Court in the above decision referred. 25/28

25. In the result, this Criminal Original Petition stands allowed and the impugned order dated 24.08.2024 passed by the first respondent is hereby set aside. The trial Court where the petitioner's suits are pending is directed to complete the trial and dispose of the suits within a period of four months from the date of receipt of a copy of this order. The trial Court is directed to find as to whether the plaintiff has right to be in possession and subject to the result of that finding, the third respondent is given liberty to take possession of the property as per the dictum laid down by the Hon'ble Supreme Court in (2012) 5 SCC 370 and AIR 2004 SC 4609. Consequently, connected Miscellaneous Petition is closed. 20.12.2024 NCC :yes/No Index :yes/No Internet:yes/No csm To

1. The Vacation Court, Madurai.

2.The Sub Divisional Magistrate cum Revenue Divisional Officer, Thirumangalam, Madurai District.

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3.The Inspector of Police, Thirupparankundram Police Station (L & O), Madurai District.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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K.MURALI SHANKAR ,J.

csm Pre-Delivery Order made in and Crl.M.P.(MD)No.9993 of 2024 Dated : 20.12.2024 28/28