1. ' SYED SAJJAD ALI SHAH, J.--- By this application under section 561-A, Cr.P.C. The applicant has called in question the order dated 29-4-2004 passed by the learned IIIrd Additional Sessions Judge, Dadu in Criminal Revision Application No,19 of 2003 whereby learned Judge reversed the finding of Judicial Magistrate, Khairpur Nathan Shah, directing the respondent No,1 to handed over the possession of property in dispute to the applicant.
2. ' Briefly stated the facts for the purpose of deciding this criminal miscellaneous application as evident from the record are that the parties are at dispute over a portion of land which the applicant claims to be the part of Survey No,118 whereas the respondent No,1 claims that it is part of Survey No,218. The controversy was first adjudicated by Civil Court where the respondent No,1 along with other co-owners had filed Suit No,46 of 1983, for a declaration that the suit-land is owned by them and permanent injunction restraining the applicant/defendant to interfere with their peaceful possession, the applicant/defendant filed his written statement denying the claim. The trial Court after allowing the parties to lead the evidence, decreed the suit vide detailed judgment, dated 24- 12-1995, by specifically holding that Survey Nos.218 and 118 are distinct and independent. It was further held that the demarcation of suit-land is not possible as there are,so many houses connected with each other over the suit-land. Since the applicant who was defendant No,1 in the said suit had claimed that the plaintiff is in certain portion of Survey No,118 being aggrieved filed an appeal against such judgment and decree which was admitted to regular hearing as Civil Appeal No,4 of 1994. The present applicant who was appellant in Civil Appeal No,4 of 1996 moved an application before the appellate Court for inspection and pleaded that a hand pump is installed at the disputed portion of the Survey No,118 which he alleged to be in possession of the respondent.
3. The Additional District Judge carried the inspection and did not find anything as was claimed by the appellant/present applicant and consequently the said appeal was withdrawn by the applicant by making a statement that he has no concern with Survey No,218. Learned District Judge did not allow simple withdrawal but passed a detailed order with the observation that the suit-land belongs to the respondents (out of them one is respondent No,1) and the appellant who is applicant in the present case was directed not to interfere with the possession of the respondent No,1. The proceedings consequently attained finality as none of the parties filed any revision against the order, dated 26-11-1996 passed in Civil Appeal No,4 of 1996.
4. ' It appears that the applicant again in the year 2001 moved an application before the Revenue Authorities for demarcation of Survey Nos.2 18 and 118. The application was allowed giving rise to filing of Suit No,122 of 2001 by the respondent No,1 along with other legal heirs. However, during the pendency of Suit No,122 of 2001, the S.H.O. Police Station Khairpur Nathan Shah filed report before the concerned Magistrate by stating that the applicant (who was defendant No,1 in Suit No,46 of 1983 and defendant No,6 in Suit No,122 of 2001) and the respondent No,1 (who was one of the plaintiffs in the Suit No,46 of 1983 as well as Suit No,122 of 2000) have a serious dispute over the disputed plot and in case the said plot is not attached there is likelihood of breach of public peace, on such report the Judicial Magistrate Khairpur Nathan Shah vide its order, dated 5-11-2002 attached the said plot and finally, vide his order, dated 30-10-2003, directed that the present applicant be put in possession of the disputed plot. The respondent No,1 being aggrieved with the said order filed revision before the Sessions Judge, Dadu who transferred the case to learned IIIrd Additional District Judge, Dadu who after hearing the parties vide his impugned order, dated 29-4- 2004 allowed the revision by setting aside the order passed by the 1st Civil Judge and Judicial Magistrate, K.N. Shah.
5. ' Learned counsel for the applicant while arguing this application has contended that the applicant simply wants demarcation of Survey Nos.118 and 218 in order to ascertain as to whether the disputed plot falls within the ambit of Survey Nos.118 or 218 and on this count the respondent No,1 should not raise any objection.
6. ' On the other hand, learned counsel for the respondent No,1 has argued that the dispute in respect of the plot in question was finally decided by the trial Court in Suit No,46 of 1983 whereby it was held that the respondent No,1 is not in possession of any portion of Survey No,118 and the applicant challenged that judgment and decree before the appellate Court by filing Civil Appeal No,4 of 1996 but the same was withdrawn in very peculiar circumstances, learned counsel further contended that once the dispute was finally adjudicated upon, the applicant in order to reagitate the same dispute used the Revenue Authorities for obtaining order of demarcation which was again challenged by the respondent No,1 along with other legal heirs by filing Suit No,122 of 2001 which has been decreed whereby the order of demarcation of the Revenue Authority was declared as illegal and the applicant has filed appeal against the said judgment which is pending adjudication. In the end learned counsel has contended that since there were judgment and decree in favor of respondent No,1 whereby the possession of the disputed plot was determined in his favor therefore, the proceedings under section 145 of Criminal Procedure Code were not competent and the Judicial Magistrate had no power to decide the possession of plot by intruding into the jurisdiction of Civil Court. In support of his contentions, learned counsel has placed reliance on the judgment of Honourable Supreme Court in the case of Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 and Shah Muhammad v. The State and 5 others 1983 SCM R 1173.
7. ' I have heard the contentions of learned counsel for the respective parties and have gone through the record as placed before me.
8. ' It is evident from the record that the parties are at dispute on a portion of land which applicant claims to be a part of Survey No,118 whereas the respondents claim the said portion of land as a part of Survey No,218. The respondent No,1 along with other legal heirs in order to settle this controversy filed Suit No,46 of 1983 seeking a declaration to the, effect that the land in possession of the plaintiff be declared to be their property and further restrained the defendant i,e, present applicant from interfering into their peaceful possession. The parties led their respective evidence and the trial Court vide its detailed judgment after appreciating the evidence decreed the suit meaning thereby declared that the property in possession of the respondent No,1 is part of Survey No,218. The judgment and decree of the trial Court was, therefore, challenged by the present application before the Appellate Court but for the reasons best known, the appeal was withdrawn and consequently the fate of the disputed portion of the land finally stood decided and for this very reason no proceedings were initiated for a long period of 6 years and thereafter the present applicant with the intention of re-agitating the crime which was finally set at naught moved an application before the Revenue Authorities claiming demarcation which for obvious reason was ,_allowed disregarding the judgment and decree of the trial Court. This led to the second round of litigation where the respondent. No,1 was forced to file Suit No,122 of 2001 challenging the decision of Revenue Authorities, however, during pendency of the suit a report was submitted by the S.H.O. On which cognizance was taken by the Judicial Magistrate and the property, despite the judgment and decree finally deciding the title and restraining the applicant to interfere with the possession of respondent No,1 was attached and thereafter vide its order, dated 30-10-2003 directed the handing over of said plot to the present applicant defeating the judgment of Suit No,46 of 1983 as well as Civil Appeal No,4 of 1996. The respondent consequently had to challenge that order of Judicial Magistrate before the Court of Session who, after hearing the parties, reversed the order impugned.
9. ' It is by now settled proposition of law that once Civil Court is seized of the subject-matter of a dispute and has directed regulation of its possession or has passed a decree granting possession in favor of a party or has restrained the opposite party from interfering with its possession, the such subject-matter of dispute does not fall within the jurisdiction of a Magistrate calling for an order under section 145, Cr.P.C. The apprehended breach of peace in the circumstances can very well be remedied by taking action under sections 107 and 151, Cr.P.C. But the subject-matter of the dispute cannot be interfered with by the Judicial Magistrate including its attachment.
10. ' Admittedly in the present case the parties are litigating over the subject-matter of the dispute since last more than two decades and the question of possession over the subject-matter of dispute was decided by Civil Court in Suit No,46 of 1983 and Civil Appeal No,4 of 1996 therefore, the Judicial Magistrate had no jurisdiction over the subject-matter of dispute entitling him to exercise powers under section 145, Cr.P.C.
11. ' In the circumstances, no case of interference, with the order of the learned IIIrd Additional Sessions Judge, Dadu is made out, the criminal miscellaneous application therefore, is dismissed.