Dittakavi Anantha Padmanabhamoorthy v. The Tahsildar and ExecutiveMagistrate, (Tahsildar, Mambalam-Guindy Taluk), K.K.Nagar, Chennai 600 078 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 23.7.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.867 of 2007andM.P.Nos.1 to 3 of 20071. Dittakavi Anantha Padmanabhamoorthy2. Kandhukuri Saibaba (alias) K.Saibaba3. Kandhukuri Ramasubramaniam (alias) K.Ramasubramaniam rep by their power of attorney K.V.SivaramprasadPetitionersvs. 1. The Tahsildar and ExecutiveMagistrate, (Tahsildar, Mambalam-Guindy Taluk), K.K.Nagar, Chennai 600 078.2. The Inspector of Police, R-3 Police Station, Ashok Nagar, Chennai 600 083.3. Thiru.C.Vedha Arun Nagarajan4. Thiru.P.K.Ali Akbar5. S.Paramanandam6. M.S.Mani7. Thiru.A.C.Shanmugam8. The District Collector, Rajaji Salai, Chennai.RespondentsCriminal Revision Case filed under sections 397 and 401 Cr.P.C.to call for the records of the first respondent in No.E-1/3121/2007and orders dated 24.5.2007 and set aside the orders of the firstrespondent passed in E-1/3121/2007 dated 24.5.2007. For petitioners: Mr.Ramesh, Senior Counsel forM/s.A.P.R. AssociatesFor RR 1,2 and 8 :Mr.N.Kumanan, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ For R3 : Mr.V.Gopinath, Senior Counsel for M/s.Balakrishnan ORDERThe order passed by the Tahsildar cum Executive Magistrate,Mambalam-Guindy Taluk under section 145 of the Code of CriminalProcedure is under challenge in this revision.2. The third respondent-Vedha Arun Nagarajan, the fourthrespondent-P.K. Ali Akbar, the fifth respondent-S.Paramanandam, thesixth respondent-M.S.Mani and one K.V.Sivaramprasad the power ofattorney of the petitioners herein lodged complaints with the secondrespondent Inspector of Police, R3 Police Station, Ashok Nagar,Chennai 600 083 and the same were registered by the second respondentpolice. As there was scramble for possession of the property whichmay result in law and order problem affecting peace in the locality,the aforesaid cases were referred to the Tahsildar cum ExecutiveMagistrate, Mambalam-Guindy Taluk to determine who actually was inpossession of the property. The Tahilsdar cum Executive Magistrate,Mambalam-Guindy Taluk issued summons to the complainants and directedthem to appear for hearing on 17.4.2007. The dispute relates toproperty bearing old door No.97/1, Plot No.A/4A measuring 3 grounds840 sqft in Block No.24, Survey No.2 in Kodambakkam Village 3. The Tahsildar cum Executive Magistrate, Mambalam-GuindyTaluk, having recorded the statement of respondents 2 to 6, raised anissue as to who actually could claim title to the property anddetermined that the third respondent Vedha Arun Nagarajan, themortgagee under Mrs.Periammal, who purchased the property from thelegal heirs of Balakrishnan, the late second husband of the originalowner late Mrs.Lakshmi Devi has title to the property.4. Learned Senior Counsel appearing for the petitioners wouldsubmit that the Tahsildar cum Executive Magistrate, Mambalam-GuindyTaluk, instead of deciding who actually was in possession of theproperty, has chosen to decide the title to the property which isoutside the scope of section 145 of the Code of Criminal Procedure.Never had he addressed the point in issue as to who was actually inpossession and enjoyment of the property. Third party has squattedupon the property after the proceedings under section 145 of the Codeof Criminal Procedure were initiated. The Tahsildar cum ExecutiveMagistrate, Mambalam-Guindy Taluk had simply ignored the relevantdocuments produced by the petitioners to establish not only theirtitle to the property but also the possession and enjoyment thereof.He has also chosen to completely give a go-by to the decision of theCity Civil Court and the High Court with respect to the possession ofthe petitioners. It is his further submission that the thirdrespondent C.Vedha Arun Nagarajan claims his right throughBalakrishnan, whose claim for legal heirship to late Lakshmi Devi was https://hcservices.ecourts.gov.in/hcservices/ rejected in the probate proceedings initiated by the petitionersbefore this court. Therefore, the illegal order will have to be setaside and the possession taken by the third parties in the garb ofthe proceedings before the Tahsildar cum Executive Magistrate,Mambalam-Guindy Taluk will have to be restored to the petitioners, itis further contended by him.5. Learned Senior Counsel appearing for the third respondentwould submit that the Tahsildar cum Executive Magistrate, Mambalam-Guindy Taluk has rightly decided the actual possession of theproperty at the time when the dispute arose which culminated inlodging the complaints by the respective parties. In the allegedproceedings initiated as against Balakrishnan and his legal heirs bythe petitioners herein, the third respondent C.Vedha Arun Nagarajanwas not at all a party. Except the documents of title produced bythe petitioners, they have not chosen to establish actual possession.The sale deed and the mortgage deed produced by the third respondentC.Vedha Arun Nagarajan would establish that he was in possession ofthe suit property at the time when the dispute arose between theparties. It is his further submission that the petitioners had notgone into the box to depose before the Tahsildar cum ExecutiveMagistrate, Mambalam-Guindy Taluk to speak about their actualpossession. The last submission made by the learned Senior Counselappearing for the third respondent is that the provision undersection 145 of the Code of Criminal Procedure cannot be used to evicta person. 6. The learned Government Advocate (Criminal Side) appearing forrespondents 1, 2 and 8 would submit that the order passed by thefirst respondent is not tainted by impropriety or illegality.Therefore, he would submit that no interference with the order passedby the first respondent is warranted.7. The petitioners have produced the letters of administrationgranted in O.P.No.752 of 1993 dated 11.2.1994 to establish that thesubject property was bequeathed in favour of the petitioners by lateLakshmi Devi who passed away on 19.10.1973 under the registered Willdated 15.10.1973 and the administration of the estate of Lakshmi Deviwas granted to them. One Balakrishnan claiming himself as the secondhusband of Lakshmi Devi produced a death certificate as thoughLakshmi Devi died on 5.9.1979 and the legal heirship certificatedated 7.5.1990 issued by the Tahsildar as the sole legal heir of thedeceased Lakshmi Devi and filed Application Nos.320 and 321 of 2001before this court praying to revoke the letters of administrationgranted in favour of the petitioners in O.P.No.752 of 1993. Thosetwo applications filed by Balakrishnan were dismissed by HonourableMr.Justice A.K.Rajan (as he then was) with exemplary cost. He wasalso pleased to issue contempt proceedings as against the saidBalakrishnan for production of false death certificate and legalheirship certificate. Balakrishnan preferred an appeal in https://hcservices.ecourts.gov.in/hcservices/ O.S.A.No.396 of 2002 as against the said order passed by this courtin A.Nos.320 and 321 of 2001. But, the said O.S.A was rejected andthe order passed by the learned Single Judge was confirmed by theDivision Bench of this court. The attitude of the said Balakrishnanseeking revocation of the letters of administration granted to thepetitioners for producing false certificates were deprecated by theBench of this court. Thereafter, the said Balakrishnan passed awayon 22.1.2004 beforeever facing contempt of court. 8. The records produced by the petitioners would go to establishthat the petitioners, who obtained letters of administration, filed asuit in the Original Side of this court in C.S.No.1038 of 1984against five persons including the said Balakrishnan seeking adeclaration that the property in dispute measuring 3 grounds and 840sqft was owned by the petitioners and also for permanent injunctionrestraining the aforesaid defendants including the said Balakrishnanfrom interfering with their peaceful possession and enjoyment of thesaid property. The pecuniary jurisdiction of the City Civil Courtwas enhanced and as a result of which, the civil suit in C.S.No.1038of 1994 was transferred to the file of the II Additional City CivilCourt, Chennai and was re-numbered as C.S.No.4681 of 1997. It isdemonstrated that the order of injunction was in force throughout theproceedings in C.S.No.1038 of 1994 on the file of this court andlater on transferred and re-numbered as C.S.No.4681 of 1997 on thefile of the II Additional City City Court, Chennai till the same wasdecreed by the latter on 23.1.2004. The suit filed by thepetitioners was decreed as prayed for and as a result of which, thepetitioners herein were declared as owners of the suit property andthe defendants in the said suit including the said Balakrishnan wererestrained from interfering with the peaceful possession andenjoyment of the petitioners, who were found to be in possession ofthe suit property. 9. The heirs of Balakrishnan preferred an appeal in A.S.No.981of 2004 and obtained an order of ex parte stay of the operation ofthe said decree passed in O.S.No.4681 of 1997 in C.M.P.No.15530 of2004 on 27.9.2004 and the same was vacated by the orders of theBench of this court in C.M.P.No.867 of 2005 on 29.3.2005. 10. The aforesaid documents produced by the petitioners would goto show prima facie that they being the owners of the suit propertieshave been in possession and enjoyment of the same. The court belowas well as this court have also recognized the possession andenjoyment of the suit property by the petitioners herein. In fact theappeal in A.S.No.981 of 2004 filed by the legal heirs of the saidBalakrishnan is still pending disposal. But, unfortunately, the heirsof Balakrishnan, claiming right under the deceased Balakrishnan,whose right to the property was completely negatived by this court,sold away the subject property to one Periammal on 9.6.2006. Thethird respondent is none other than the mortgagee under the mortgage https://hcservices.ecourts.gov.in/hcservices/ deed dated 7.2.1997 executed by the said Periammal with respect tothe subject property. 11. It is demonstrated by the petitioners that when the claim ofBalakrishnan as the sole legal heir of Lakshmi Devi was completelynegatived by the court below and this court, his legal heirs chose toalienate the suit property in favour of Periammal under the sale deeddated 9.6.2006. Thereafter, a mortgage deed in the name of the thirdrespondent Vedha Arun Nagarajan was also executed by Periammal on7.2.2007. Of course, these two self-serving documents would speakabout possession of Periammal and the delivery of possession byPeriammal to Vedha Arun Nagarajan. When the petitioners haveestablished prima facie their right to the property and theirpossession thereof, the documents created by the legal heirs ofBalakrishnan who have no semblance of right to the property on9.6.2006, will not clothe any right on the purchaser of the property.In order to knock off the right of the petitioners with respect tothe suit property, these documents have been created by the heirs ofBalakrishnan. No document has been produced apart from those twoself-serving documents to establish possession of the suit propertyby the third respondent Vedha Arun Nagarajan. It is to be noted atthis juncture that the suit property is a vacant site. No documentwas also perused by the first respondent Tahsildar cum ExecutiveMagistrate, Mambalam-Guindy Taluk to satisfy himself that on the datewhen the complaint was given by the respective parties, Vedha ArunNagarajan was in possession and enjoyment of the suit property. 12. This court has heavily come down upon the claim byBalakrishnan so far as the death certificate of Lakshmi Devi and thelegal heirship certificate obtained by him that on the demise ofLakshmi Devi on 5.9.1979 and not on 19.10.1973 he became the soleheir. But, the Tahsildar cum Executive Magistrate, Mambalam-GuindyTaluk, having thrown to wind the rejection of the above plea ofBalakrishnan, arrived at a conclusion that he was the legal heir ofLakshmi Devi. It appears that the Tahsildar cum Executive Magistratehad refused to refer to the order passed by this court in ApplicationNos.320 and 321 of 2001 filed by Balakrishnan to revoke the lettersof administration and the order passed by the Bench in O.S.A.No.396of 2002 preferred by the said Balakrishnan. This court had clearlyobserved that the said Balakrishnan seeks to revoke the letters ofadministration producing false certificate of death of Lakshmi Deviand Legal Heirship certificate saying that he was the sole heir. 13. The petitioners have claimed right over the property underthe Will executed by Lakshmi Devi, but, quite unfortunately, theTahsildar cum Executive Magistrate, Mambalam-Guindy Taluk has chosento observe that the petitioners did not produce any sale deedexecuted by Lakshmi Devi in their favour. He has completelymisdirected himself and has addressed the issue which falls outsidethe scope of the proceedings under section 145 of the Code of https://hcservices.ecourts.gov.in/hcservices/ Criminal Procedure . 14. The petitioners have obtained the declaratory decree andalso a decree for permanent injunction restraining the legal heirs ofBalakrishnan from interfering with their possession and enjoyment ofthe subject property. As the stay granted in the appeal preferred bythe legal heirs of Balakrishnan was vacated, the declaratory decreeand decree for permanent injunction are in operation. There is nofinding as to when the third respondent came into possession of theproperty.15. The learned Senior Counsel appearing for the thirdrespondent cited a ratio laid down by this court in THAYAMMAL v.KRISHNA CHETTY (1978 LW Crl. 128) wherein it has been held asfollows:-"In the instant case, even though the petitionershave obtained a decree for partition and separatepossession, that has no bearing on the question ofpresent possession. In such circumstances, itcannot be said that the Criminal Court has nojurisdiction to entertain a petition under S.145,Cr.P.C which is mainly for avoiding breach ofpeace. This petition, therefore, fails and standsdismissed."16. That was a case where in a partition suit, a preliminarydecree for partition was granted by the court. This court observedin the aforesaid judgment that such a decree may not have muchbearing on the factual position on the date when the dispute arosebetween the parties which culminated in the proceedings under section145 of the Code of Criminal Procedure . But, here is a case where thecompetent court has not only declared the title to the property butalso granted permanent injunction as against the legal heirs of thedeceased Balakrishnan. Claiming that the mortgagor of the thirdrespondent purchased the property from one of the legal heirs of thesaid Balakrishnan, the complaint has been lodged which culminated inproceedings under section 145 of the Code of Criminal Procedure. Onlyto circumvent the decree passed as against the legal heirs ofBalakrishnan, such documents have been created. In view of theabove, the aforesaid decision does not apply to the facts andcircumstances of the case.17. Yet another decision in SHRI CHANDU NAIK v. SHRI SITARAM B.NAIK (1978 LW Crl. 126) was cited by the learned Senior Counselappearing for the third respondent. It has been held therein,"... in substance and in effect a proceeding underS.145 of the Code is not for the purpose ofevicting any person from any land but is primarilyconcerned with the prevention of the breach of the https://hcservices.ecourts.gov.in/hcservices/ peace by declaring the party found in possessionto be entitled to remain in possession untilevicted therefrom in due course of law."18. Nothing has been shown by the third respondent that he hasbeen in possession and enjoyment of the suit property except the selfserving sale deed in the name of the mortgagor and the mortgage deedin the name of the third respondent. Those documents have come intoexistence when the order of injunction as against the legal heirs ofBalakrishnan is very much in force. Therefore, the aforesaid ratiois not applicable to the facts and circumstances of this case. 19. In view of the above facts and circumstances, the courtfinds that it is only the petitioners who have been in possession andenjoyment of the suit property by virtue of the Will executed byLakshmi Devi, the letters of administration granted by this court,the decree for declaration and also for permanent injunction obtainedby them as against Balakrishnan and others, on the date when thedispute was taken up for consideration. 20. The order passed by the Tahsildar cum Executive Magistrate,Mambalam-Guindy Taluk is found to be perverse and is tainted byillegality and impropriety. Therefore, revision of such an order ismandated. Accordingly, the revision stands allowed. Theencroachment made by third respondent or any third party in thesubject premises shall be removed by the Commissioner of Police,Greater Chennai within two weeks from the date of receipt of thisorder. The connected Miscellaneous Petitions stand closed. Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrarssk. To1. The Tahsildar and Executive Magistrate, (Tahsildar, Mambalam-Guindy Taluk), K.K.Nagar, Chennai 600 078.2. The Inspector of Police, R-3 Police Station, Ashok Nagar, Chennai 600 083.3. The District Collector, Rajaji Salai, Chennai. https://hcservices.ecourts.gov.in/hcservices/

4. The Commissioner of Police, Greater Chennai.5. The Public Prosecutor, High Court, Madras.6. The Section Officer, Criminal Section,High Court, Madras.+ 2 cc to M/s.APR Associates,Advocate,SR.33730+ 1 cc to Mr.K.Balakrishnan,Advocate,SR.33525Crl.R.C.No.867 of 2007TS(CO)EM/27.7.09