IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 Crl.Rev.Pet.No. 153 of 2006(D) ------------------------------------------ MC.106/1997 DTD. 06/01/2006 OF THE SUB DIVISIONAL MAGISTRATE, TRISSUR. .................... REVISION PETITIONERS/ 2ND & 3RD RESPONDENT: -------------------------------------------------------------------------- 1. SAVITHRI, W/O.LATE SUKUMARAN, AGED 53, NEDIYIRIPPIL HOUSE, KARAYAMUTOM P.O., VALAPPAD, THRISSUR DIST. 2. GINISHAN, S/O.LATE SUKUMARAN, NEDIYIRIPPIL HOUSE, KARAYAMUTOM P.O., VALAPPAD, TRISSUR DIST. BY ADV. SRI.S.SREEKUMAR. RESPONDENTS/ PETITIONER AND STATE: ------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GOPALAKRISHNAN, S/O.GOPALAN, KUTTIKKATTU HOUSE, KAZHIBRAM DESOM, VALAPPAD, KARAYAMUTTOM P.O, TRISSUR DIST. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R1, ADV. SRI.K.A.SATHEESH BABU FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.GIRI, J. ------------------------- CR.R.P.No.153 of 2006 ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The petitioners challenge the final order passed by the Sub Divisional Magistrate, Thrissur in M.C.No.106/97. The said final order has been passed making absolute an earlier conditional order passed by the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure (for short “the Code”}. 2. The petitioners claim right over 44¼ cents of property comprised in R.S.No.358/8 of valappad Village, stated to have been obtained in partition as per Partition Deed No.1108/87 of the Thriprayar Sub Registry; that the property is included in the B schedule and it is part of the larger extent of 1 acre and 16 cents stated to be with Unniran Kunju, father of Sukumaran as per Document No.1337/1939. The further case is that the 44¼ cents of property was set apart for the share of Sukumaran, the husband of the 1st petitioner and the father of the second petitioner. One Sathyan and Rajan, stated to be residing on the south western side of the 44¼ cents of property, cut open a pathway. Crl.R.P..No.153 of 2006 :: 2 :: Sukumaran, the predecessor-in-interest of the petitioners filed O.S.No.22/93 before the Munsiff's Court, Chavakkad. The defendants set up a plea that there was an existing pathway. This was negatived and the Munsiff's Court, decreed the suit. 3. In 1997, a complaint was filed by the present 2nd respondent and 108 others before the Sub Divisional Magistrate, Thrissur invoking the provisions of Section 133 of the Code. It is alleged that there is a public pathway extending to more than 4 cents on the south western side of 44¼ cents of property claimed by Sukumaran. That, this alleged pathway was referred to in the document of title of the adjacent property. Learned Magistrate passed a conditional order on 15/8/1997. 4. Late Sukumaran then filed O.S.No.224/98 before the Munsiff's Court, Chavakkad against the 2nd respondent. Learned counsel for the petitioner submits that an interim injunction was sought for under Order 1 Rule 8 Code of Civil Procedure. The plaintiff sought a decree restraining the defendants from Crl.R.P..No.153 of 2006 :: 3 :: trespassing upon the plaint scheduled property of 44¼ cents by either cutting upon a pathway or otherwise. An ad-interim order was passed which is stated to have continued till the disposal of the suit, which was decreed. What is to be noted is that the 2nd respondent and others raised a contention that the plaint scheduled property is admittedly included in R.S.No.358/8 of Valappad Village, whereas the alleged pathway claimed by the 2nd respondent and others is included in R.S.No.358/2. They, therefore, contended that the pathway is situated outside the property claimed by the 2nd respondent. This is one of the facts which arises for consideration. 5. As stated earlier, O.S.No.224/98 was decreed on 27.10.2005. It seems that the trial court had found that there was no pathway as alleged. A.S.No.355/05 was filed before the District Court, Thrissur by the 2nd respondent. It was later transferred to the 1st Additional Sub Court, where it was renumbered as A.S.No.199/07 and the appeal was allowed with costs on 31.7.2008. Crl.R.P..No.153 of 2006 :: 4 :: 6. It is, in the meanwhile, that the conditional order was made absolute by the learned Sub Divisional Magistrate in the impugned order. The Sub Divisional Magistrate proceeded to find, inter alia, that the proceedings in O.S.No.224/98 or the further proceedings arising therefrom has nothing to do with the pathway claimed by the complainants before the Sub Divisional Magistrate. In other words, the Sub Divisional Magistrate proceeded on the premise that the proceedings pending before the Civil Court would have no impact on the proceedings initiated by the Sub Divisional Magistrate. 7. I heard learned counsel for the petitioners Sri.S.Sreekumar and learned counsel for the 2nd respondent Sri.Satheesh Babu. 8. Sri.Satheesh Babu contends that, as on date, the decree passed by the Civil Court is in favour of the 2nd respondent inasmuch as the Civil Court has found that there is a public pathway through the plaint scheduled property and therefore, the plaintiff in the suit will not be entitled to seek an injunction. Crl.R.P..No.153 of 2006 :: 5 :: Sri.Sreekumar submits that the Civil Court decree has not become final as the period of limitation for preferring an appeal is not over. 9. I do not think, this is a case where I should embark upon an appraisal of the rival contentions with reference to the order passed by the Sub Divisional Magistrate under Section 137 of the Code. But, I am constrained to take note of the fact that the Sub Divisional Magistrate has not been correct in proceeding on the premise that the subject matter of the complaint is different from the subject matter of the proceedings before Civil Court as such. After all, it has been the contention of the defendants that the pathway does not form part of the plaint schedule property, whereas that is controverted by the plaintiff. The trial court had accepted the claim of the plaintiff and had decreed the suit. I observe is that it cannot be said that the subject matter of the proceedings under Section 133 of the Code were not completely different from the subject matter of the proceedings before the Civil Court. If that be so, then it is only appropriate that the Crl.R.P..No.153 of 2006 :: 6 :: parties be regulated by the decree of the Civil Court and any order passed by the Sub Divisional Magistrate under Section 133 of the Code should be made subject to the final decree that may be passed by the Civil Court. 10. In the facts and circumstances, I think, it is appropriate that the parties herein are required to abide by the order passed by the Civil Court. 11. I would have normally accepted the plea made by Sri.Satheesh Babu that as on date the decree passed by the civil court is in their favour and since the order passed by the Sub Divisional Magistrate is in consonance with the same, the order does not actually require interference as such. But the appellate court has passed a decree only on 31.7.2008. 12. Accordingly, the Criminal Revision Petition is disposed of in the following terms: (1) The order of stay passed by this court on 16.1.2006 shall continue to remain in force for a period of three months. (2) In the meanwhile, if the petitioners herein prefer an appeal against the Crl.R.P..No.153 of 2006 :: 7 :: appellate decree in A.S.No.199/07 before the Sub Court, Thrissur and moves an application for an interim order and court passes any interim order, the parties shall be governed by such interim order passed in the second appeal. (3) It is made clear that this order being passed in this Crl.R.P. shall, obviously, not stand in the way of the 2nd respondent and others, who are defendants in O.S.No.224/98, taking up an appropriate contention that they have a right over the pathway which is stated to be a public pathway situated outside the plaint scheduled property as such. (4) Both the parties are entitled to take up all contentions available to them, in any proceedings that is initiated by the petitioners herein against the appellate decree, as mentioned above. It is made clear that I have not gone into the other contentions of either of the parties. (5) The order passed by the Sub Divisional Magistrate impugned herein will be subject to any order which may be passed by this court in an appeal, which might be preferred against the appellate decree in Crl.R.P..No.153 of 2006 :: 8 :: A.S.No.199/07 of the 1st Additional Sub Court, Thrissur. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge