This reference has been made by the District Magistrate, Sukkur, for the quashment of the order of the learned Civil Judge and First Class Magistrate, Rohri dismissing the complaint filed under section 145, Cr. P. C. On the ground that since respondent Mirza Mohiuddin Ahmed has not been' able to establish .That he was dispossessed within two months from the date of the filing of the complaint, the proceedings cannot, therefore, lie and his complaint seas accordingly, dismissed on that ground. It appears that Mirza Mohiuddin Ahmad had filed an application under section 145, Cr.
P. C. Against the respondents Masoom Ali. Khan and others alleging that they were trying to obtain forcible possession of the land and that there was a dispute which was likely to lead to a breach of peach. A preliminary order was passed by the Civil Judge and First Class Magistrate, Rohri on 9th May 1967 whereby he had called upon the respondents to file their written statements and to establish their claim with regard to the possession of the disputed land. By the same order the Zamindari share of the produce of the said land was attached and the Tapedar was appointed a receiver.
2. On the conclusion of the proceedings, the learned Civil Judge and First Class Magistrate by his order dated 6th April 1968 dismissed the complaint on the ground that the respondent Mohiuddin had not been able to establish his possession within, two months of the date of the filing of the complaint. There was no finding as to whether there was any apprehension of breach of peace.
The learned Civil Judge and First Class Magistrate had merely set down a point for determination which was to the effect as to whether the land in dispute was in possession of respondent Mohiuddin on or about 27th April 1967 when he had filed this application under section 145, Cr. P. C.
3. A revision was filed against this order before the District Magistrate, Sukkur by respondent Mohiuddin and the learned District Magistrate by his order dated 18th September 1968 has made a reference to this Court with the request that the order of the learned Civil Judge and First Class Magistrate be quashed. The ground upon which this reference has been made is that the learned Civil Judge and First Class Magistrate has wrongly come to the conclusion on the evidence that respondent Mohiuddin was not in possession of the land since October 1966 and that, therefore, the order was bad in law. I would not have accepted this reference on this ground if it was the only ground touching contents of the order dated 6th April 1968. Nothing appears in the order of reference as to why the finding of fact as arrived at by the Civil Judge and First Class Magistrate with regard to the rejection of the claim of possession of respondent No. 1 should not be accepted.
However, it appears that the complaint could not have been dismissed on the ground as was done by the trial Court. If the trial Court had come to the conclusion that respondent No. 1, Mohiuddin Ahmed, had not been able to establish his possession then in that case it was the requirement of law that there should have been a declaration with regard to the possession of the other respondents in terms of subsection (6) of section 145, Cr. P. C., if the Civil Judge and First Class Magistrate had also come to the conclusion that there existed an apprehension of breach of peace.
4. The only ground upon which a complaint can be dismissed is either for non-prosecution or upon a finding by the First Class Magistrate that there was no apprehension of breach of peace as that is the only requirement which gives the jurisdiction to the Magistrate to determine the question of possession. I would, therefore, accept the reference, set aside the order of the learned Civil Judge and First Class Magistrate dated 6th April 1968 and direct that the complaint be decided in accordance with law.