NASIM HASAN SHAH, J.--This is a petition for leave to appeal against the order of the Lahore High Court, dated 27th April, 1977, directing the restoration of possession of a piece of land to respondents 2 to 4 under the provisions of section 145, Cr. P. C.
2. The facts which form the background, briefly stated, are as follows Respondents 2 to 4, as partners of a Firm titled Hassan Din and Company, obtained a piece of land comprising Khasra Nos. 319, 323, 325 and 328, measuring 24 kanals 5 marlas, situated in Kot Dhoni Chand. Tehsil and District Lahore, from its owners Messrs Ghulam Farid and Noor Muhammad, in 1963, on ten years lease for the purpose of a brick--kiln. (For facility of reference, the respondents and the owners shall be referred to as the "first lessees" and the "lessors", respectively). On the expiration of the lease the "first lessees" were desirous of obtaining exten--sion of the lease, while the "lessors" were not inclined to extend it. A dispute arose in this connection and the "lessors" claim to have resumed possession of their land. However, the "first lessees" took steps to re--enter into possession. The "lessors", therefore, instituted a suit for permanent injunction to restrain the "first lessees" from interfering with their possession. In pursuance of the above suit an interim order of status quo was issued in favour of the "lessors" on- 31-7-1975 by Mr. Abdul Salam Khawar, Civil Judge, Lahore. A counter-suit; however was filed by the "first lessees" claiming to be in possession and seeking to restrain the "lessors" from interfering in their business. The "first lessees" were also granted a status quo order in pursuance of this suit on 5-8-1975. The "first lessees" agitated the status quo order passed in favour of the "lessors", dated 31-7-1975, which was heard by the Additional District Judge, Lahore, who, after obtaining a report from the Commissioner appointed to ascertain the factum of possession, clarified the order of status quo passed in favour of the lessors to the effect that as the Commissioner had found the. "first lessees" to be in possession, the lessors should not interfere in their business. This order was passed on 26-8-1975 and is the basis of the order of the High Court, which is impugned before us.
Coming to 'the case of the petitioner who came into the picture at this stage, it may be stated that the lease in favour of the "first lessees" having expired, he entered into an agreement for lease of the land in question with the "lessors" and at the same time also negotiated the purchase of the kiln appliances and the superstructure from the "first lessees". On 4-9-1975 the "first lessees" executed a receipt in token of having received Rs. 80,000 as price of the superstructure etc., which document was signed by Muhammad Sad1q, a partner of the Firm of the "first lessees", and Ghulam Farid, one of the owner's also affixed his thumb-impression as .a witness to this document. A lease- deed was also executed by the "lessors" on 7-9-1975 with the petitioner (hereinafter to be referred to as the "second lessee"). The case of the petitioner is that he was put in possession of both the superstructure and the site on . 4-9-1975 and that thereby on account of the voluntary act of the parties to the case the order dated 26-8-1975 of the learned Additional District Judge, wherein the possession of the "first lessees was acknowledged no longer remained operative. The earlier suit filed by the "lessors" against the "first lessees" and the counter-suit by the "first lessees" against the "lessors" also accordingly, became irrelevant.
4. It, however, appears that although the "first lessees" had agreed to the sale of the superstructure in favour of the "second lessee", there was a controversy on this point amongst the partners of the Firm with regard to this transaction. The petitioner (second lessee), in order to safeguard his interest, deemed it expedient to institute a suit for permanent injunction to restrain the "first lessees" from interfering with his possession of the brick-kiln site. The application for injunction - came up before Mr. Allah Bakhsh Ranjha, Civil Judge, Lahore, who issued a status quo order in favour of the petitioner on 25-9-1975. This order was extended from time to time and ultimately confirmed on 29-11-1976 by the learned Civil Judge. The record shows that the suit filed by the first- lessees against the lessors was also put up for hearing along-with the last mentioned suit.
However, in view of the order passed by the learned Civil Judge, confirming the injunction in favour of the petitioner, the said suit filed by the "first lessees" was dismissed. Thus, the only civil suit pending in the civil Court at present is the suit between the "second lessee" and the "first lessees", in which status quo stands confirmed vide order dated 29-11-1976.
5. It may however, be mentioned that on 20-3-1975 during the pendency of the suit of the petitioner and operation of the temporary injunction order dated 25-9-1975 (later confirmed on 29-11-1976) the first lessees filed a suit for declaration that the receipt with regard to the pay--ment of Rs.
80,000 was forged. However, on 25-10-1975 the "first lessees" submitted an application to withdraw the said suit as they proposed to pursue the matter of forgery through a criminal proceeding. This was actually initiated on the same date, namely, 23-10-1975. Accordingly, the civil suit was withdrawn on 25th October, '1975. However, the criminal proceedings regarding forgery proved futile because on receipt of reports submitted to the Court after investigation, the Ilaqa Magistrate cancelled the case by his order dated 10-12-1975. The "first lessees", in the meanwhile, had also moved the Ilaqa Magistrate under section 145, Cr. P. C. For attaching the property. An order in this respect-was passed on 3-11-1975 and the property was, consequently attached at 5 p. m. On 4-11- 1975. Thereafter, the "first lessees" moved the High Court for quashment of these proceedings by an application under section 561-A, Cr. P.-C. (Criminal Miscellaneous No. 713-Q of 1975). Mr. Justice Aslam Riaz Hussain of the Lahore High Court heard this matter and being of the view that the possession of the land in question stood re3ulated by two orders passed by the civil Court, namely the order of the learned Addi--tional District Judge, Lahore, dated 26-8-1975, and the order of Mr. Allah Bakhsh Ranjha, Civil Judge, dated 25-9-1975, held the proceedings under section 145, Cr. P. C.
As liable to be quashed and accordingly quashed them. A submission was made before him that the orders of the two civil Courts were contradictory, inasmuch as the order dated 26-8-1975 was in favour of the "first - lessees" while the. Order dated 25-9-1975 was in favour of the "second lessee" and it was prayed that some observation with regard to the party who should retain possession may be made In this connection it was observed that the parties could move the learned District Judge for passing appropriate orders. The quashment petition was disposed of in the above terms.
6. In pursuance of the above order of quashment the Ilaqa Magistrate, namely, Mr. Zulfiqar A.I Toor, withdrew the attachment order on 18-12-1975 and consigned the file to the records. On 3-1-1976 the "first lessees" filed an application for restoration of the possession of the premises, but this application was dismissed by the learned Magistrate for want of jurisdiction on 10-1-1976.
Undeterred, the lessees filed another application for the same purpose on 15-1-1976. That application, too, was dismissed by the learned Magistrate (Soofi Ghulam Mustafa) on 29-1-1976 for want of jurisdiction. The "first lessees" thereupon filed a revision against the order .Dated 29-1.1976 before the High Court. This petition was heard by Mr. Justice Abdul Jabbar Khan of the High Court who accepted it on the ground that the order dated 26-8-1975 passed by the learned Additional District Judge, Lahore, made it clear that the possession of the premises was with the "first lessees".
He further observed that in view of the provisions of clause (6) of section 145, Cr. P. l;. They were entitled to be restored the possession of it. Con--sequently, the order dated 29-1-1976 passed by Soofi Ghulam Mustafa, learned Magistrate, was set aside and he was directed to put the first lessees into possession forthwith, observing that it would be ultimately for the civil Court to pronounce its verdict regarding the merits of the case. This order was passed on 27-4-1977 and is impugned before us.
7. We have beard Mr. S. M. Nazim, Advocate, in support of this petition, and Malik Muhammad Nawaz, who appeared on behalf of the "first lessees", as caveator. Since the learned counsel for the parties have been heard at length and the learned counsel for the respondents did not dispute the facts, as set out in the petition, the petition was converted into appeal to be disposed of finally.
8. The learned counsel for the "first lessees" submitted that although the petitioner was at present in possession of the premises, he had entered into possession by taking the law into his own hands and, therefore, could not be assisted in maintaining his illegal possession over the land in dispute.
9. We are not prepared to accept the submission that the possession of the petitioner/appellant is the result of his having taken the law in his own hands. It will be recalled that the attachment order was withdrawn on 18-12-1975 and according to the appellant he has been in possession of the area in dispute thereafter. According to Mr. S. M. Nazim, Advocate, for the petitioner, this is borne out by the report of the S. H. O. Be as it may, in the order passed by Mr. Ghulam Mustafa. Magistrate, dated 29-1-1976, dismissing the application of the "first lessees" for want of jurisdiction, it was observed that according to the report of the concerned Police Officer at the time of attachment neither the petitioner/ appellant nor the respondents were present there, accordingly, he was unable to "pin point any person in whose possession the disputed property was at the time of attachment". It was further observed that this matter was pending with the local civil Court and was to be decided by it.
The view taken by the learned Magistrate was in conformity with the dictum of this Court in the case of Shah Muhammad v. Haq Nawaz (PLD 1970 SC 470 ), wherein it was laid down that a case in which a civil Court is already seized of the subject-matter of dispute and has passed an order regulating possession thereof fails outside the jurisdiction of a Magistrate under section 145, Cr. P.
C. In these circumstances, we are inclined to agree with the submission of the appellant that the application of the "first lessees" for restoration of possession was rightly rejected by Soofi Ghulam Mustafa on 29-1-1976 as the Court acting under section 145, Cr. P. C. Had no jurisdiction to interfere and exercise any power in relation to the matter of restoration of possession. Consequently, the learned Judge in the High Court, in setting aside the said order, vide his impugned order, did not act in accordance with law. In this connection it is to be pointed out that Mr. Justice Aslam Riaz Hussain in his order dated 9-12-1975 rightly declined to deal with this matter of possession as the same was being regulated by the order of the civil Court, and this finding of the learned Judge was not liable to be modified or reviewed in this subsequent pro--ceedings.
10. Furthermore, the circumstance relied upon by Mr. Justice Abdul Jabbar Khan for accepting the revision petition of the "first lessees", namely, that the Additional District Judge, Lahore, had found, in his order dated 26-8-1975, that they were in possession, and accordingly were entitled to be put in possession, could not have been relied upon since the said order was not the last order in the field and a subsequent order, which was most relevant, was overlooked. The real position was that besides the order of the Additional District Judge, Lahore, dated 26-8-1975, wherein the possession of the "first lessees" was acknowledged, there existed also the subsequent order dated 25-9-1975; passed in the suit of the petitioner against the "first lessees", whereby status quo was granted in his favour. It was in these circumstances that Mr. Justice Aslam Riaz Hussain had, in the earlier proceedings, directed the parties to approach the learned District judge with a view to clarifying the situation in the face of these contradictory orders. In these circumstances we are of the opinion that Mr. Justice Abdul Jabbar Khan erred in law in taking up the matter of possession himself in the present proceedings.
1l. So far as the factual position is concerned, the order passed by the learned Additional District Judge, dated 26-8-1975 was passed with. Reference to the suit filed by the "first lessees" to restrain the "lessors" from interfering with their business. At that stage the present petitioner was not in the picture at all. It was only on 4-9-1975, some days after the above-mentioned order dated 26-8- 1975 was passed by the learned Additional District Judge that the "first lessees" relinquished posses--sion, sold their appliances and superstructure. This was followed by a lease-deed executed by the petitioner (second lessee) with the "lessees". The receipt contains the signatures of Muhammad Sadiq, partner of the Firm of the "first lessees". Muhammad Sadiq did not deny his signatures, but his plea was that he had signed on a plain paper and not on the receipt as finally drawn up. In view of the signatures of Muhammad Sadiq a heavy onus. Lay on him to establish that he had not signed the receipt as finally drawn up. Finally, there was also the order dated 25-91975, whereby interim status quo order was granted in favour of the petitioner. In these circumstances, the fact that the petitioner is in possession appears to be beyond dispute. Moreover, in the order dated 29-11-1976, passed by the learned Civil Judge, confirming the order dated 25-9-1975 the possession of the present petitioner was admitted. The following parts of the said order may be reproduced hereunder with advantage : .
"The parties had also indulged in criminal litigation which were finally quashed by the Honourable High Court. Photo copy of the lease-deed dated 7-9-1975 admittedly executed by respondents Nos. 1 and 2 in favour of the petitioner and the receipt of purchase malba allegedly executed on 4- 9-1975 by respondent NQ. 3 in petitioner's favour, coupled with the latest photo copy of Khasra girdawari prepared on 3-4-19'76. Prima facie, establishes the petitioner's possession over @ suit property under lease from respondents Nos. I and 2 and purchase of malba etc. From respondent No. 3. As regards the allega--petition of forgery regarding the receipt dated 4-9-1975, it has yet to be determined on evidence whether or not it is so? But in view of the principles laid down in PLD 1970 SC 180, the petitioner has a prima facie arguable case in his favour. Prima facie he is also entitled to the protection of his possession under section 63-A of T. P. Act as held in PLD 1975 Lah.
489 and PLD 1964 SC 106 As discussed above, a prima facie case exists in petitioner's favour. He being in possession of the suit land, .The balance of convenience and irreparable logs also lie on his side.
I, therefore, confirm the stay order granted earlier to the petitioner. The respondents are restrained from interfering in petitioner's possession of the suit property till the final disposal of the suit except in due process of law." (Underlining[Here in italics] is ours)
12. From the foregoing recital of facts it is clear that Mr. Justice Abdul Jabbar Khan has not taken into consideration the effect of the orders of the civil Courts that were passed after 26-8-1975. He has over--looked the execution of the document of sale signed by Muhammad Sadiq on behalf of the "first lessees" on 4-9-1975. The order of status quo dated 25-9-1975, and the final order of the Civil Judge dated 29-11-1976, confirming the order dated 25-9-1975, which was passed after hearing the "first lessees". As it is the order of the civil Court which has to regulate the matter of possession, the learned Judge in the High Court could not pass any order contrary to the said orders in connection with the proceedings under section 145, Cr. P. C. - The order dated 27-4-1977 passed by the High Court cannot, therefore, be sustained and is hereby set aside.
13. In conclusion, this appeal is allowed.