This is a reference under section 435, Cr. P. C. By the learned Sessions Judge, Gujranwala in which recommendation has been made that the order, dated 20th February 1967, passed, under section 145, Cr. p. C., by a learned Magistrate 1st Class, Gujranwala, whereby the possession of the house in dispute has been ordered to be delivered to Matbela (respondent No. 1), be set aside and the possession be ordered to be delivered to Khanun petitioner.
2. Briefly, the circumstances leading up to the present petition are that the house in dispute is claimed to have been purchased, on 9th October 1965, by Khanun, by means of an alleged deed of transfer (Exh. D. A.) from one Taja. On the other hand, Mathela claims the ownership of the house in dispute on the basis that it is ancestral qua him and belongs to him. It appears that the house was in constructive possession of Mathela, when on the basis of the alleged purchase mentioned above Khanun broke open a wall of that house and put in some articles of daily use. On 8th March 1'966, it is alleged by Mathela, Khanun tried to take forcible possession by opening the walland dueto that a fight took place in which Mathela was injured, as a consequence of which a case under sections 326/149, 148, P. P. C. Was registered on 9th March 1966, against Khanun and some others. The police on the one side, started investigating 326 case and, on the other, proceeded under section 107/151, Cr. P. C. Against the parties. Not being satisfied with these measures, the police further wanted to take action in respect of the house in dispute and made an application to the Ilaqa Magistrate on 10th March 1966 that the proceedings under section 107/151 had, by then, proved ineffective and that permission be granted to seal the house and to proceed under section 145, Cr. P. C. The Ilaqa Magistrate passed an order, dated 20th April 1966, on that application to the effect that the police may proceed according to law, presumably indicating, under section 145, Cr.
P. C. On 11th May 1966, the articles belonging to Khanun lying in the house wire recovered by the police vide memo. (Exh. P. B.) and handed over to a superdari on 14th May 1966, vide memo. (Exh. P.
C.). The house was sealed by putting locks on the doors and also by closing the opening made in the wall which incidentally fell within the courtyard of Khanun; and at about the same time i.e., 11th May 1966, reported the matter to the Magistrate for taking action under section 145, Cr. P. C., vide report (Exh. P. E.). The learned Magistrate thereupon passed the initial order under section 145 (1), Cr. P. C. On 1st June 1966. Both the parties having submitted their written statements and having produced the evidence, the learned Magistrate came to, the conclusion, as he put it, that on the day that the proceedings were initiated, Mathela was in possession of the house. Therefore; acting under the proviso to subsection (4) read with subsection (6) of section 145, Cr. P. C., he ordered the possession of the house in dispute to be delivered to said Mathela.
Khanun then moved the learned Sessions Judge who has recommended that Khanun being in possession of the house in dispute within two months of the order dated 1st June 1966, was in law eligible for the delivery of possession.
3. I have heard Mr. Mushtaq Raj, the learned counsel for the petitioner, Ch. Riasat Ali Khan, the learned counsel for Mathela respondent and Mian Muzaffar Ahmad, the learned counsel for the State. The learned Magistrate as well as the learned Sessions Judge have ignored some material circumstances in this case which I hereby notice :-
(i) that the possession of the house in dispute, undoubtedly, was, at one time, with Mathela but Khanun had succeeded in diluting that possession, by means of making and opening in the wall of the house and putting some articles of daily use in that house which means that the possession from that day onward did not remain exclusively with Mathela,
(ii) that on 8th March 1966, some occurrence is said to have taken place, as a result of which the police intervened. On the day that the police went at the spot, the possession as described by the Sub-Inspector, in his statement as P. W. 11, was that, on the one hand the articles of daily use belonging to Khanun were lying in the house through an opening towards his house, and on the other hand the door was locked, the key of which was with Mathela. It appears that this position got frozen because of 107 proceedings and the investigation by the police in the criminal case. That is why when on 11th May 1966, the articles of Khanun were removed from the house in dispute, the door was still found locked by Mathela. After 11/14 May 1966, none of the present parties was in effective possession of the house and the police having stepped in, both of them were out of possession.
4. The material date and period according to all the learned counsel, on and for which the possession of the parties needs to be determined, is 1st April 1966, and thereafter up to 1 Lth/14th May 1966. During these days, it is very difficult to decide as to who was in more effective possession and control of the house in dispute. That is the reasons which led to the witnesses, on both sides, making vague and contradictory statements. It appears that both the parties remained in constructive possession of the house and. None of them tried, in that period, to annoy the other which would have necessarily resulted in annoyance of the police and may have entitled other consequences. Thus the proper course for the learned Magistrate, in these circumstances, was to have acted under section 146 (1), Cr. P. C. Because it was very difficult in these circumstances to have determined as to who was in actual physical possession within two months of the.Order, A dated 1st June 1966.
All the learned counsel have very frankly agreed to the analysis of the facts and have also stated that anagreed order may be passed in this revision. The order suggested is that the Magistrate should be directed to act under section 146 (1) and attach the subject of dispute, until a competent civil Court has determined the rights of the parties thereto. I have independently come to the same confusion. Therefore in view of the above discussion, I hereby set aside the order passed by theth th learned Magistrate on 20th February 1967, and direct him to proceed under subsection (I) of section 146, Cr. P. C. The result of this order would be that the possession will have to be taken back from Mathela and the house in dispute would have to be attached till- the decision about rights by a competent civil Court.