The central legal point established in the judgment is the requirement for the Magistrate to have jurisdiction and for all disputants to be given an opportunity to be heard before deciding the actual possession of the property.

Ayling, J.

1. These revision petitions arise out of proceedings under Section 145 of the Code of Criminal Procedure before the Sub-Divisional Magistrate of Kumbakonam (Miscellaneous Case No. 49 of 1919 on his file) regarding certain lands in five villages of Papanasam Taluk. These proceedings were initiated by an order of the Magistrate, dated 26th September 1919, which runs as follows:

Whereas I am satisfied that a breach of peace will take place unless action under Section 145, Code of Criminal Procedure, is taken in respect of lands, etc, now in dispute, noted here below in the schedule, both parties will appear on 8th October 1919 at Kumbakonam and put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute.

2. An attachment order under the last portion of Clause 4 of Section 145 followed; a schedule of the lands in dispute was appended; and also a list of the parties called on to appear and put in written statements. These were:

3. Petitioner.--T.M.C. Kuppusawmi Pillai.

4. Counter-petitioners.--1. C. Muthusawmi Pillai, 2. Venkatachella Thinnapiriyan, 3. Murugayya Malavarayan, 4. Gopalasawmi Kurakondan, 5. Varada Nandiar, 6. Velu Malavarayan.

5. Criminal Revision Case No. 625 is based on a revision petition presented by 6th counter petitioner, asking that this order may be set aside as without jurisdiction.

6. The Magistrate subsequently held an enquiry and on 10th October 1919, passed an order under Clause (6) of Section 145 in favour of petitioner, Kuppuswami Pillai. Against this order all the counter petitioners petitioned (Criminal Revision Case No. 668 of 1919); 5th counter-petitioner has since died.

7. It is necessary to set out briefly the history of the proceedings. The properties in question appear to have belonged to a Vakil, named Knmaraswami Pillai, who died on the 13th March 1919. Petitioner and 1st counter-petitioner are his sons and he also left four daughters and a widow. After his death disputes arose as to his properties. Petitioner claimed to be entitled to hold all of them as managing member of an undivided family after the death of his father. His brother and sisters set up a Will and apparently also alleged partition. On 15th August 1919 petitioner Kuppusami Pillai petitioned the Sub-Divisional Magistrate to restrain the 6th counter-petitioner, whom he named, from interfering with his exclusive possession and management of the properties. A report on this was submitted by the Police on 26th August 1919 which will be referred to later; and, an 30th August 1919, the Magistrate passed an ex parte order under Section 14 of the Code of Criminal Procedure prohibiting the counter-petitioners from interfering with the lands. This is stated only to be a temporary measure, pending an enquiry to be made on 15th September 1919. This ex parte order was cancelled by the District Magistrate on 22nd September 1919 on the ground that, as long as the whole dispute was sub judice with the Sub Divisional Magistrate, no breach of the peace was to be apprehended. The order concluded thus: "The Sub Divisional Magistrate should con-duct his enquiry and pass such orders as he deems fit."

8. The enquiry posted to 15th September 1919 had apparently been adjourned to 26th September 1919; and on the latter date, the Sub Divisional Magistrate took the matter up again but took action not under Section 144, Criminal Procedure Code, but under Section 145, passing the order set forth above.

9. Against this the 6th counter-petitioner presented a revision petition to this Court (Criminal Revision Case No. 625 of 1919) and obtained an order, dated 7th October 1919, staying further proceedings in the Magistrates Court pending disposal of his petition. This stay order was unfortunately not communicated direct to the Sub Divisional Magistrate but only through the District Magistrate; and as a fast did not reach the Sub Divisional Magistrate till 10th October Meanwhile, on 8th October