This judgment will dispose of-----
(1) Criminal Revision No. 650 of 1970
(2) Criminal Misc. No. 4804 of 1970
(3) Criminal Misc. No. 4809 of 1970
(4) Criminal Misc. No. 5366 of 1970, which arise out of the same facts.
2. These petitions arose in the following circumstances:--
(a) Ch. Ghulam Murtaza, original resident of Qadirabad, Duliam. District Sialkot, according to the entries in the revenue papers, was owner of 5/18th share in the occupancy rights of the land measuring 940 kanals bearing Khata No. 91, Khatooni Nos. 209 to 219 situated in Chak No. 150/10-R.
Tehsil Khanewal, District Multan. According to the entries in the revenue papers, he was in exclusive Hissadari posses--sion of the land bearing Khata No. 91, Khatooni No. 209, Square No. 54, killas Nos.
1 to 4, 7 to 14 and 17 to 24, measuring 160 kanals; Khatooni No. 210, Square No. 45 killas Nos. 1 to 12 measuring 94 kanals 4 marlas; and Khatooni No. 211, Square No. 61, killas Nos. 1 to 25, measuring 197 kanals.
(b) Ghulam Maseih (petitioner is Criminal Revision No. 850 of 1970) was a tenant-at-will under Ch. Ghulam Murtaza in respect of the land bearing square No. 45, killas Nos. 1 to 12, measuring 94 kanals 4 marlas. Muhammad Sharif (petitioner in Criminal Revision No. 650 of 1970) was a tenant- at-will under Ch. Ghulam Murtaza in respect of square No. 54. Killas Nos. 1 to 4, 7 to 14 and 17 to 24, measuring 160 kanals.
(c) Ch. Ghulam Murtaza died on the 19th April 1970. He was survived by three sons, namely Nabi Ahmad, Bashir Ahmad and Ghulam Ahmad and three daughters, namely, Mst. Fatima Begum, Mst.
Saeeda Begum and Mst.Khurshid Begum.
(d) It is alleged that Ch. Ghulam Murtaza appointed his grand-son, Anees Mahmud Ahmad (son of Nabi Ahmad) as his Mukhtar-e-Aam. It is also alleged that Anees Mahmud Ahmad, acting as Attorney for Ch. Ghulam Murtaza, sold Ch. Ghulam Murtaza's 5/18th share in favour of Ch. Abdul Rahman. Khan for Rs. 1,14,183. The sale was reported to the Patwari on the 17th April 1970, and thereon Mutation No. 51 was duly entered and was sanctioned on the 6th May 1970. In the mutation proceedings it was stated that possession of the land sold was given to Ch. Abdul Rehman Khan.
(e) On the death of Ch. Ghulam Murtaza on the 19th April 1970, disputes arose amongst his heirs.
Mst. Khurshid Begum, daughter of Ch. Ghulam Murtaza and wife of Major Abul Khair, filed a civil suit in a civil Court at Sialkot. Ghulam Maseih and Muhammad Sharif tenants were willing to attorn to the rightful heir who was declared to be entitled to the produce; but they denied that they had been dis--possessed, in any manner, or that actual possession of the specific Khasra Numbers cultivated by them as tenants-at---will had, at any time, been delivered to Ch. Abdur Rahman Khan.
(f) As the dispute was likely to lead to breach of peace, the S. H. O. Police Station Jehanian, on the 11th May,1910, took the following actions, namely:--
(i) he initiated proceedings under section 145, Cr. P. C. Between Ch. Abdur Rahman Khan as first party and Major Abul Khair, Anees Mahmud Ahmad Gama (Ghulam Maseih) Muhammad Sharif and Muhammad Yusuf as the opposite --party;
(ii) he initiated action under section 107/151,.Cr. P. C. Between the aforesaid parties.
(g) In the proceedings under section 145, Cr. P. C., the learned Magistrate, on the 12th May 1970 directed that the land in dispute together with the standing crops be attached. The parties were directed not to interfere with the land and the crops, in any manner, and were further directed to submit their respective cases on the 20th May 1970. By order dated the 20th May 1970, the Girdawar Halqa and the Patwari were appointed Receivers.
(h) In the proceedings under section 145, Cr. P. C. Ghulam Maseih and Muhammad Sharif claimed that they were in physical possession of the disputed land as tenants. They prayed that their standing crops be released from attachment and proceedings against them be filed. Lay order dated the 13th June 1970, the learned Magistrate, after perusal of the documents, concluded; The applicants are not the tenants 'of land for which man order of attachment was passed by this Court. However, they are party to the proceedings Under section 145, Cr. P. C. They cannot be allowed to enter the land in dispute. The application may, be filed.
(i) On the 18th May 1970, Mst, Fatima Bibi (Mst. Fatima Begum), Mst. Saeeda Begum and Mst.
Khurshid Begum filed an administration suit against the three sons of Ch. Ghularo Murtaza, Saddar, Anjuman-e-Ahmadia, Rabwa, Anees Muhmud Ahmad Ch. Abdul Rahman for administration of the property (movable and immovable) left by Ch. Ghulant Murtaza, Saddar Anjuman-e-Ahmadia, Rabwa was impleaded as a party because Ch. Ghulam Murtaza had bequeathed the 1/10th share of his estate in favour of the said Anjuman. They filed an application under Order XXXIX, rules 1 and 2, C. P. C., inter alia, for restraining defendants 3, 5 and 6 from dispossessing the applicants- plaintiffs from any pan of the land entered in Khata No. 91. Khatooni- Nos. 209 to 219 in the Jamabandi for the year 1966-67. They also made an application for the appointment of a Receiver during the pendency of the suit. By order dated the 18th May 1970, passed in the administration suit, the defendants 3, 5 and 6 were restrained from dispossessing the plaintiffs from any part of the land entered in Khata No. 91 Khatooni Nos. 209 to 219 as prayed for by them. A Robkar was sent to the Magistrate 1st Class, Khanewal for information.
3. Ghulam Maseih and Muhammad Sharif filed Criminal Revision No. 650 of 1970 to have set aside the order dated the 13th June 1970, with a direction that the proceedings under section 145, Cr. P. C.
Against them be dropped.
Ghulam Maseih and Muhammad Sharif filed Criminal Misc. No. 4804 of 1970 for quashing of the proceedings pending against them under section 107, Cr. P. C. They alleged that they were not interested in the dispute between the heirs of Ghulam Murtaza inter se.
Ghulam Maseih and Muhammad Sharif filed Criminal Misc. No. 4809 of 1970 for transfer of the case under section 107, Cr. P. C. Pending in the Court of Rai Sultan Muhammad, Magistrate 1st Class, Khanewal. They urged that the learned Magistrate, in the order dated the 13th June 1970, in a per-- functory manner, held that the petitioners were not tenants. They alleged that "the learned Magistrate has already given his verdict so far as the case under section 107, Cr. P'. C. Is concerned.
His mind is biased against the petitioners". The case reported as Mst. Asifa Sultana v. The State (1969 P Cr. L J 1259) was brought to the notice of the learned Magistrate. Similarly, the temporary injunction issued by the Administrative Civil Judge was also brought to his notice; but the learned Magistrate appeared to be under the influence of Ch. Abdul Rahman Khan. Hence the transfer of the case from his Court.
On the 29th July Mst. Fatima Begum, Mst. Saeeda Begum and Mst. Khurshid Begum filed Criminal Misc. No. 5366 of 1970 under section 561-A, Cr. P. C. Pending in the Court of Rai Sultan Muhammad.
They alleged that ''though according to the Revenue entries the Khata is joint. Yet as a matter of fact, its partition took place in 1946, and the land bearing killas Nos. I to 12 of Square No. 45, and killas Nos. 1 to 4, to 14 and 17 to 24 of Square No. 54, and killas Nos. 1 to 25 of square No. 61 measuring 456 kanals 4 marlas was exclusively owned by their father at the time of his death." They further alleged that Ch. Abdul Rahman, at best, got only symbolic possession as a co-sharer in pursuance of the sale made in his favour although the actual possession remained with Ghulam Maseih and Muhammad Sharif tenants. Since Ch. Abdul Rahman never got actual physical possession, the proceedings under section 145, Cr. P. C. Were not maintainable.
4. The date on which the police apprehended that there, was a likelihood of breach of the peace between the two parties, namely, Ch. Abdul Rahman as the first party and Major Abul Khair, Ghulam Maseih alias Gaman, Muhammad: Sharif etc., on the other, is the 11 th May 1970. The foundation of the dispute was laid on the 17th April 1970, when report No. 365 was entered in the Roznamcha Waqiayati of the Patwari Halqa No. 150/10-R and' thereafter Mutation No. 51 was entered. The report and the mutation unmistakably show that Ch. Ghulam Murtaza was Dakhilkar of 5/18th share in 940 kanals of land described in Khewat No. 91 Khatooni Nos. 209 to 219, the share being equivalent to 216 kanals 2 marlas. Anees Mahmud Ahmad as Mukhtar of Ch. Ghulam Murtaza sold the said share in favour of Ch. Abdul Rahman Khan for Rs, 1,14,185. The possession of the land sold was stated to have been delivered to the purchaser. Eventually, the mutation was sanctioned on the 6th May 1970. A perusal of the report by the S. H. O. Under section 145, Cr. P. C. Would show that Ch: Abdul Rahman Khan claimed that in pursuance of the sale he had obtained actual possession of 32 acres of land described as below:--
(a) Square No. 54, killas Nos. 1 to 4, 7 to 14 and 17 to 24, measuring 160 kanals.
(b) Square No. 45, killas Nos. 1 to 12, measuring 94 kanals 4 marlas.
It may be noticed that Muhammad Sharif claimed to be in occupation as tenant of square No. 54 killas Nos. 1 to 4, 7 to 14 and 17 to 24; and Ghulam Maseih claimed to be in occupation as tenant of square No. 45, killas Nos. 1 to 12. It may also be noticed that the said land was not lying vacant but crops were standing thereon and the learned Magistrate on the 20th May 1970, gave directions regarding the appointment of a receiver in respect of the said crops.
5. Ch. Aziz Ahmad, learned counsel for Ghulam Maseih and Muhammad Shard, contended that in pursuance of the sale Ch. Abdul Rahman could at best obtain symbolic possession of he share purchased by him, but could not claim to have obtained actual possession of any specific killas numbers. In other words, at best, he could have become a co-sharer with other co-sharers, namely, the heirs of Ch. Ghulam Murtaza.
6. Ch. Abdul Rahman claimed that he had been given actual possession of the specific killas numbers, namely:---
(a) Square No. 54, killas Nos. 1 to 4, 7 to 14 and 17 to 24, and
(b) Square No. 45, killas Nos. 1 to 12.
A similar assertion was repeated by the S. H. O. When on the 11th May 1970, he initiated the proceedings under section 145, Cr. P. C. Ch. Abdul Rahman asserted before the S. H. O., that he had been delivered possession of the said specific killa numbers by the Revenue Authorities. There is no evidence to establish that the Revenue Authorities put Abdul Rahman in Actual physical possession of the specific killas numbers mentioned above.
7. On the other hand, Muhammad Sharif claimed that he was in actual physical possession of square No. 54, killas Nos. I to 4, 7 to 14 and 17 to 24, as tenant; similarly, Ghulam Maseih claimed that he was in actual physical possession of square No. 45, killas Nos. 1 to 12 as tenant during the crucial period, namely, from the 17th April 1970 to the 11th May 1970.
Copy of Khasra Girdawari Rabi 1969, would show that Gaman (Ghulam Maseih) Isai, was in occupation, as tenant, of square No. 54, killas Nos. 1 to 4, 7 to 14 and 17 to 24, on payment of rent at the rate of Rs. 2,000 per annum. In Kharif 1969 and Rabi 1970 the entries in Khasra Girdawari, however, show that Mirza Mansoor Ahmad and Anees Mahmood, tenants, were in possession of Square No. 45, killas Nos. 1 to 12, and Square No. 54, killas Nos. I to 4, 7 to 14 and 17 to 24, Learned counsel for Ghulam Maseih and Muhammad Sharif contended that the entirely relating to Kharif 1969 and Rabi 1970, in Girdawari, were false. In this connection, he relied on
(i) the affidavit sworn by Mirza Mansoor Ahmad; and
(ii) copy of Khasra Shudkar, as prepared by the Canal Patwari.
Mirza Mansoor Ahmad, in his affidavit, stated that the entries in Kharif 1969 and Rabi 1970 were incorrect, and that he was acting as Nazim Amoor-e-Ama Silsila Alia Ahmadia, Centre Rabwa and had nothing to do with the cultivation of the Land in question. Copy of Khatauni Nehr for Kharif 1969 (Marked A) showed that Muhammad Sharif cultivated square No. 54, killas Nos. I to 4, 7 to 13 and 18 to 24, and Ghulam Masih cultivated Square No. 45, killas Nos. 1, 2, and 6 to 12. Similarly, copy of Khasra Shudkar for Rabi 1970 showed that Ghulam Masih cultivated Square No. 45, killas Nos. 1 to 4 and to 10; Muhammad Sharif cultivated Square No. 54, killas Nos. 3, 4. 7, 10 to IS, 17, 19, 21 to 24, Copy of Khasra Shudkar for Kharif 1970, also showed that Ghulam Maseih cultivated square No. 45, killas Nos: 1, 9 to 12, and Muhammad Sharif cultivated square No. 54, killas Nos. 1 to 4, 7, 8, 10 to 13, 20 and 21.
Mr. D. M. Awan, learned counsel for Ch. Abdul Rahman, contended that the entries in Khasra Girdawari for Kharif 1969, and Rabi 1970, could be accepted and acted upon and that if the same were incorrect, Ghulam Maseih and Muhammad Sharif or any person aggrieved by the entries, could, in accordance with law, apply for a correction of the same. The said entries stand contradicted by the affidavit submitted by Mirza Mansoor Ahmad, the entries are also contradicted by independent entries made by the Canal Patwari. Lastly, was pointed out above, Ghulam Maseih and Mohd. Sharif were found to be cultivating the land and asserting their possession. Ch. Abdul Rahman failed to show that at any stage Ghulam Maseih and Muhammad Sharif (who admittedly wherein possession as tenants prior to Kharif 1969) were dispossessed in accordance with law. He also failed to show that he had been given possession of the said land by the Revenue Authorities.
In these circumstances, it is reasonable to rely on the entries in Khasra Shudkar. It is, therefore, accepted that Ghulam Maseih and Muhammad Sharif were in actual physical possession of the specific killa numbers mentioned above.
The inference shall be that as a result of the sale in dispute, Ch.. Abdur Rahman, at best, became a co-sharer with other co---sharers, but was not given actual physical possession.
8. On the 18th May 1970, Me. Fatima Bibi, Mst. Saeeda Begum and Mst. Khurshid Begum filed an administration suit in the Court of the Administrative Civil Judge, Sialkot, for administration of the property, including the property mentioned in the proceedings under section 145, Cr. P. C. The same day, namely, the 18th May 1970 the Civil Judge restrained respon--dents 3, 5 and & (namely, Ch. Abdul Rehman) from dispossessing the, plaintiffs from any part of the land measuring 456 kanals and 11 marlas in Khata No. 91 Khatooni Nos. 209 to 219 of Jamabandi for the year 1966-67 of Chak No. 150/ 10-R, Tehsil Khaneval, District Multan, till the 30th May 1970. Learned counsel for Mst. Fatima Bibi, and Mst. Khurshid Begum stated at the Bar that the injunction was later recalled by the trial Court, and that an appeal was preferred to the District Judge, Sialkot, who issued the temporary injunction in similar terms. Learned counsel has placed on the record copy of the order passed by the District Judge, Sialkot, on the 18th May 1971.
It follows that the civil Courts have taken seizin of the land in dispute and have passed orders regulating its possession.
9. On the 12th May the learned Magistrate passed the order under subsection (1) of section 145, Cr.
P. C. The learned Magistrate attached the land together with the crops in dispute under subsection
(4) of section 145, Cr. P. C. Before any further proceedings could be taken, the civil Court in the administration suit, passed orders on the 18th May 1970 regulat--ing the possession of the land.
10. Ch. Aziz Ahmad, learned counsel for Ghulam Maseih and Muhammad Sharif, contended that Abdul Rahman never obtained actual physical possession of square No. 45, killas Nos. 1 to 12, Square No. 54, killas Nos. 1 to 4, 7 to 14 and 17 to 24 and that the actual physical possession therefore was with Ghulam Maseih and Muhammad Sharif. According to him the learned Magistrate was not competent to take proceedings under section 145, Cr. P. C. In respect of this land. In this connection, learned counsel cited the cases reported as:----
(1) Abdus Salam Meaji v. Abdul Qadir Bepari PLD 1967 Dacca 715;
(2) Mofizur Rahman v. Serajul Mostafa 1968 P Cr. L J 599;
(3) Mst. Asafa Sultana v. The State 1969 P Cr. L J 1259 ; and
(4) Shah Muhammad v. Haq Nawaz PLD 1970 SC 470.
Abdul Rahman purchased, only a share in the joint property. He could not possibly obtain possession of specific plots of the joint property. In any case, the report made to the Patwari on the 17th April 1970 and the entries in Mutation No. 51 did not state in so many words that Abdul Rahman was given actual physical possession of specific killa numbers of Squares Nos. 45 and 54. At best Abdul Rahman could be a co-sharer with other's heirs of Ch. Ghulam Murtaza deceased. Section 145, Cr. P. C. Is applicable to dispute about "Land" where each contesting party claims actual physical possession to the exclusion of the other. This section is inapplicable to the case of parties who are in joint possession of such land.
Besides, as seen above, Ghulam Maseih and Muhammad Sharif were in actual physical possession as tenants of the specific killa numbers out of Squares Nos. 45 and 54 in dispute. The had not been dispossessed in due course of law. was observed in Shah Muhammad's case as follows:----- "It becomes apparent at once that the proceedings initiated under section 145, Cr. P. C. Are subordinate to a decree or order passed by a civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' or 'water'. These proceedings though concerning the subject---matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore of a transitory nature . . . . . . . . . . . . . . .
Section 14'5 therefore proceeds on the premises that the Magistrate will cease to deal with the possession of 'land' or 'water' in dispute before him as soon as a civil Court is seized with the dispute and has passed a decree declaring the rights-of the parties therein ox has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehensionof breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr. P. C. And bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo.
Mr. D. M. Awan, learned counsel for Ch. Abdul Rahman, pointed out that the instant case was distinguishable from Shah Muhammad's case. In the precedent case, action was take by the Magistrate, after action had been taken by the civil Court, whereas in the instant case, action has been taken by the Magistrate prior to the action taken by the civil Court. The ratio decidendi of Shah Muhammad's case is that the pro--ceedings under section 145, Cr. P. C. Are subordinate to an order that may be passed by a civil Court. The order passed by the Magistrate is of a transitory nature, and the Magistrate will cease to deal with the possession of land or water in dispute before him as soon as a civil Court is seized with the dispute and has passed . . . . . . . . . . . . . . . An order regulating possession of the subject-matter of the suit." , The argument, though attractive, is insignificant. As seen above, the civil Court is regulating the possession of the land in dispute. It follows that as soon as the civil Court passed an order regulating the possession of the land, the learned Magistrate lost jurisdiction to continue with the proceedings under section 145, Cr. P. C.
Which proceedings, were a transitory nature.
If at any stage, the civil Court declined to regulate possession in pursuance of Order XXXIX, C. P. C.
The Magistrate shall be free, and shall be competent to re-start the pro--ceedings if apprehension of breach of peace continues to exist.
11. In view of what has been stated above, it is concluded that the proceedings under section 145, Cr. P. C. Are no longer 'maintainable. Accordingly, Criminal Revision No. 650 of 1970 and Criminal Misc. No. 5366 of 1970 are hereby accepted and the proceedings are quashed.
In view of this direction, the impugned order dated the 13 June 1970 also stands quashed.
12. Since Ghulam Maseih and Muhammad Sharif are prepared to attorn to the rightful claimants and since they are entitled to continue in possession of Square No. 54 killas Nos. 1 to 12, and Square No. 54, killa Nos. 1 to 4, 7 to 14 and 17 to 24 until they are evicted in due course of law, there is no warrant for the proceedings under section 107/151, Cr. P. C. Criminal Misc. No. 4804 of 1970, is, therefore, accepted and the proceedings are quashed.
13. Criminal Misc. No. 4809 of 1970 has become infructuous. It is hereby dismissed as such.