Madras High Court
Viraputhiran @ Murali vs The Sub Divisional Magistrate ... on 5 January, 2021
Crl.R.C.No.149 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.RC.No.976 of 2020 and
Crl.M.P.No.6846 of 2020
1. Viraputhiran @ Murali
2. Babu @ Kannappan
3. Naguesvary
4. Kanagam
5. Senbgavalli
6. Kaliki
7. Kalaiselvi ... Petitioners
Vs.
1. The Sub Divisional Magistrate (North),
Saram, Puducherry.
2. Mahakrishnan ... Respondents
PRAYER : Criminal Revision Case filed under Section 397 and 401 Cr.P.C.
to call for the records of the entire proceedings in M.C.No.33 of 2020
order dated 07.10.2020, on the file of Sub Divisional Magistrate (North),
Puducherry.
1/8
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Crl.R.C.No.149 of 2016
For Petitioners :Mr.D.Senthil Kumar
For Respondents :Mr.Bharatha Chakaravarthy (R1)
Public Prosecutor
ORDER
Challenging the order dated 07.10.2020 passed by the learned Sub
Divisional Magistrate (North), Puducherry, in M.C.No.33 of 2020 the
petitioners are before this Court by way of the Civil Revision.
2. The learned counsel for the petitioner would submit that the suit
properties originally belonged to one Thandavaraya Gounder and he
purchased the same from one Arumugapillai, son of Gopalasamy Pillai on
13.01.1916 and thereafter, he executed a gift deed in favour of his
children and the petitioners are the grandchildren of Thandavaraya
Gounder. It is further submitted that the petitioners filed a suit for
partition in O.S.No. 343 of 1995 before the learned Principal Sub Court,
Pondicherry and got the preliminary decree. Thereafter, they filed an
application in I.A.No. 2276 of 1999 for appointment of an Advocate
Commissioner to measure the said property and for passing of final decree
and during the pendency of the final decree application, the second
respondent and his brother filed two applications one in I.A.No.3035 of
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Crl.R.C.No.149 of 2016
2001 for impleading them as necessary parties and another application in
I.A.No. 3036 of 2001 to stay of operation of the preliminary decree and
I.A.No.3035 of 2001 was returned as infructuous and I.A.No.3036 of 2001
was dismissed on merits and no appeal was filed against the said order in
respect of the applications till date. It is further submitted that
subsequently the suit was transferred from the Sub Court to the I
Additional District Munsiff at Pondicherry and renumbered as O.S.No.1291
of 2007 and based on the Advocate Commissioner's report final decree
was passed on 20.12.2007. It is further contended that the second
respondent filed suit in O.S.No.917 of 2020, before the II Additional
District Munsiff Court, Pondicherry for permanent injunction and pending
disposal of the same, the second respondent filed I.A.No.94 of 2020 for
interim injunction and as no interim order is granted they filed an
application before the Sub Divisional Magistrate (North) in M.C.No.33 of
2020 under Section 145 of Cr.P.C. seeking to take action against the
petitioners herein and to pass an order to stop illegal construction made
by the petitioners, wherein a detailed counter along with 17 documents
have been filed by the petitioners, but the learned Sub Divisional
Magistrate failed to consider the same and passed the final order on
07.10.2020 by ordering status-quo in respect of the disputed site until
further orders from the competent civil court and other directions. The
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Crl.R.C.No.149 of 2016
learned counsel for the petitioner would further contend that the learned
Sub Divisional Magistrate failed to consider the final decree passed in
favour of the petitioners and also the fact that application filed by the
second respondent for impleading was returned and the stay application
was dismissed and no challenge was made as against the said orders. It
is further contended that though the Judgment passed in O.S.No.917 of
2020 is final, the second respondent filed another suit in O.S.No.917 of
2020 and the same is also pending, the learned Sub Divisional Magistrate
(North), Puducherry has passed an order without any jurisdiction which
warrants interference.
3.Mr.Bharatha Chakaravarthy, the learned Public Prosecutor
(Pondicherry) appearing for the first respondent would submit that the
petitioners have not filed the Judgment and decree passed by the Civil
Court before the Sub Divisional Magistrate and since the petitioners tried
to encroach the property wherein the seond respondent and his brother
were residing, in order to maintain law and order, the learned Sub
Divisional Magistrate has disposed of the M.C. filed before him. However, if
the learned Sub Divisional Magistrate was aware of the final decree passed
by the Civil Court, he would not have passed the said order.
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Crl.R.C.No.149 of 2016
4. Mr.K.S.Ilangovan, learned counsel appearing for the second
respondent would submit that the second respondent is also one of the
owners of the disputed property and petitioners without obtaining any
permission from the authorities as required under Town and Country
Planning Act has started the construction in the disputed property and
therefore the Puducherry Planning Authority issued stop work notice and
without obeying the said order the petitioners constructed the building and
therefore in order to maintain the law and order in the Society, the
learned Sub Divisional Magistrate (North) have taken the application filed
by the second respondent and passed the order and therefore the order
passed by the learned Magistrate need not be interfered with.
5. Heard both sides. Perused the records.
6. Admittedly, the petitioner filed a suit in O.S.No.343 of 1995 and
got the preliminary decree and subsequently got the final decree. Further,
the application filed by the second respondent to implead him in the suit
was returned as infructuous and the application filed for stay was
dismissed. But, without challenging the orders passed in these
applications, the second respondent filed a suit in O.S.No.917 of 2020
before the II Additional District Munsiff Court and the learned II Additional
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Crl.R.C.No.149 of 2016
District Munsif has not passed any interim order. Subsequently during the
pendency of the said suit, the second respondent approached the Sub
Divisional Magistrate in M.C.No.33 of 2020, wherein the learned Sub
Divisional Magistrate passed the order dated 07.10.2020, which is
impugned in this revision.
7. On a perusal of the entire records available before this Court, it is
seen that after filing the suit before the Civil Court having failed to get
interim order, the second respondent has approached the Sub Divisional
Magistrate to get favourable order. It is well settled proposition of law that
Sub Divisional Magistrate is not the competent authority to decide the title
and further when the suit is pending before the civil court, the learned Sub
Divisional Magistrate has no authority to deal with the matter. Further, a
careful reading of the order passed by the learned Sub Divisional
Magistrate would go to show that learned Sub Divisional Magistrate has
exceeded his jurisdiction which warrants interference. Therefore,the
impugned order passed in M.C.No.33 of 2020 dated 07.10.2020 is set
aside and this Criminal Revision Petition is allowed. The parties are
directed to work out their remedies in the Civil Court. However, if at all
any violation regarding approval or construction, the authority concerned
is at liberty to take action in accordance with law and rules as prevailing in
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Crl.R.C.No.149 of 2016
the Union territory of Pondicherry. Consequently, connected
Miscellaneous Petition is closed.
Index:Yes/No 05.01.2021
Speaking order/Non-speaking order
arr
To
The Sub Divisional Magistrate (North), Puducherry.
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Crl.R.C.No.149 of 2016
P.VELMURUGAN, J
arr
Crl.RC.No.976 of 2020
05.01.2021
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.149 of 2016
https://www.mhc.tn.gov.in/judis/
