Order: This criminal revision petition arises out of an order passed in a proceeding under section 145 of the Code of Criminal Procedure, 1898, in M. C. No. 3 of 1974 on the file of the Executive First Class Magistrate, Perintalmanna, and is filed by the B-party in the proceedings The subject-matter of his proceeding is a land used for raising seedlings known as "Mele Nadukkandamenna Nattukandam’ comprising R. S. No. 307 of 1974 of Mooniyur village.

2. The case of the A-party is that this property was taken on an oral lease by him from his father Alavikutty Haji in the year 1960 fixing an annual rent of 7 paras of paddy and thereafter he has been in actual possession and enjoyment of the same. This land is used by him for raising seedlings for the purpose of cultivation in his other paddy-lands having an extent of about 5 acres. He has been paying rent and obtaining receipts for the same from the lessor. Similarly,, he has been paying land revenue for this land which is included in Patta No. 291. The assignment deed relied on by the B-party is a sham document not supported by consideration and no possesion passed under the said document to the B-party. This document was got executed to defeat his tenancy right, at a time when his father was very old and sickly, in collusion with his younger brother who is a shareholder in the tile factory run by the B-party.

3. The B-party contended that this property was purchased by them under Exhibit B-1 assignment deed dated 23rd July, 1973 from the father of A-party for the purpose of removing clay required for the production of tiles in Janatha Tile Factory owned by them and that in pursuance of this they are in possession of this property. The sons of Alavikutty Haji were aware of this assignment. On 24th November, 1973 some persons at the instance of Moideen, son of the assignor, under Exhibit B-1 trespassed upon this property. Another attempt was also made to trespass upon this land on 15th December, 1973. Though the matter was reported to the police, no action was taken by them. The A-party filed a petition claiming himself to be a tenant before the Land Tribunal, Tirurangady, for purchasing the jenmi right in this land and this petition was rejected on 19th January, 1974 and after the dismissal of this petition the police proposed proceedings under section 145 of the Code of Criminal Procedure in respect of this property.

4. Both parties filed affidavits and documents. On hearing both sides, the Executive First Class Magistrate held that the claim of actual possession of the disputed property by A-party is true and therefore: A-party was declared to be entitled to retain such possesion of the disputed property until ousted in due course of law.

5. The counsel for the petitioners attacked the said order on two grounds and submitted that the order of the Executive First Class Magistrate is vitiated by illegality and should be set aside. The first ground urged on behalf of the petitioners is that though both parties have filed affidavits, the Executive First Class Magistrate has not considered any one of them; this is a clear illegality which has vitiated the order and caused serious prejudice to the petitioners and on this ground alone this order is liable to be set aside. The next ground of attack is that the decision of the Executive First Class Magistrate is based on Exhibit A-13 which has not been properly proved in the case.

6. I shall now deal with these points one by one. It was argued on behalf of the petitioners that the learned Executive First Class Magistrate has violated the mandatory provision in sub-section (4) of section 145 of the Code of Criminal Procedure, 1898. which will hereinafter be called the Code that he did not consider the affidavits filed on either side, that the order does not indicate that he has applied his mind, that this Court has held in Narayanankutty Menon v. Sekhara Menon1, that an order of this nature is improper and invalid and therefore on this short

Click Here to Read the rest of this document