' The case has been called out. The counsel for the petitioners is present but neither the respondent nor her counsel has turned up. The record of the case shows that she has been served for this date through a registered acknowledgement due post. I, therefore, proceed to hear and decide the case on merits.
' This revision petition by Muhammad Sharif, Balanda, Inayatullah and Taj, is directed against the order of Mr. AR Kazim A.D.C. (G) Lahore dated 207-1972.
2. The facts giving rise to the revision petition are as follows:-- ' Mst. Aisha Bibi respondent initiated proceedings under section 145, Cr.P.C. In respect of a residential house. A preliminary order was passed on 3-11-1971 by Mr. Hafiz Akhtar, Assistant Commissioner/M.I.C., Chunian, directing the sealing of the house in dispute. The matter again came up before him on 26-4-1972, on which date he concluded the proceedings and ordered the handing back of the house to the present petitioners. The ground for the same as stated by him in paragraph No,2 of his order is as follows:-- "Today the petitioner is present and has argued his case. It is accepted by the petitioner that the house was in the possession of the respondents at the time of the dispute. The rights of the parties in respect of the ownership of the house are pending in a Civil Court. Therefore, the claims of the parties and the evidence in that respect brought up by the parties is the subject-matter in the concerned Civil Court."
' Mst. Aisha Bibi went up in revision to the learned Additional Deputy Commissioner (General), Lahore with the powers of the District Magistrate. That learned Officer accepted the revision and set aside the order of the learned Magistrate on the gorund that the affidavits filed by Mst. Aisha Bibi did not, at all, disclose that she had accepted that the house in dispute was in possession of the present petitioners at the time of the dispute.
' I have gone through her affidavits and find that she had made no such statement conceding the right of the present petitioners on the property. As to the observations of the learned trial Magistrate that a civil suit was pending between the parties with regard to the same house, the learned counsel for the present petitioners admitted that it was so but stated that no injunction or other order had been passed by the learned Civil Court regulating the possession of the house in dispute and the proceedings under section 145, Cr.P.C. Could not therefore, be thrown out on that score.
3. He submitted further that the District Magistrate had no power to remand the case in exercise of his revisional power under section 438, Cr.P.C. He can only submit a report and refer the matter to the High Court under section 439, Cr.P.C. In support of this contention he cited.
(1) Ram Autar v. Udabir Singh AI R 1952 All. 498 and (2) Mukhutadhari Shann v. Ajodhya Shoo AIR 1949 Cal.
241.
' He contended next that a reading of the complaint filed by Mst. Aisha Bibi on which the proceedings under section 145, Cr.P.C. Were initiated, does not mention the date on which the present petitioners, (respondents in the proceedings under section 145, Cr.P.C.) took forcible possession of the house. She has simply stated therein that she had gone to Jhelum alongwith her children, after locking the house and that in her absence the respondents (the present petitioners), took forcible possession of the same. The learned counsel for the petitioners contended that since the proceedings were under section 145, Cr.P.C. The Magistrate has to decide as to who was in possession on the date of the preliminary order or two months prior thereto, it was necessary for Mst. Aisha Bibi that she should have given the date on which forcible possession was taken. In support of this contention he cited Nisar Ali v. Babu Hussain ALi PLD 1965 Pesh. 78 and Gui Muhammad v. Mst. Kubra Begum PLD 1961 Pesh.
76.
I am inclined to agree with the learned counsel for the petitioners. In the first instance the learned A.D.C. (General), acting as District Magistrate, has no power under section 438, Cr.P.C. To remand the case. He can only report the matter to the High Court with recommendation that the order of the learned trial Magistrate be set aside. I also agree with the learned counsel for the petitioners that since the only matter for decision before the Magistrate while acting under section 145, Cr.P.C.
Is to find out as to who was in possession on the date of the preliminary order or at any time within two months next before the date of such order, it is necessary, in cases where forcible dispossession is alleged , to give the date thereof because if the date of forcible dispossession falls beyond two months of the passing of the preliminary order, there is nothing left for the Magistrate to determine. In the present case it is admitted in the complaint itself that on the date of the complaint, the present petitioners were in possession of the disputed premises. A question would therefore, arise as to when they had come into possession, (forcibly or otherwise), of the disputed house. But it shall be noticed that Mst. Aisha Bibi has not given any clue as to the date when she left for Jhelum or when the present petitioners took the alleged forcible possession of the disputed house, it cannot. Be said that they were not in possession of the house since more than two months prior to the passing of the preliminary order. The result is that the proceedings under section 145, Cr.P.C. Between the parties are rendered infructuous. This view finds support from the observations in Gul Muhammad's case PLD 1%1 Pesh. At p. 80-D.
4. As a result of the above discussion I hold that the order of Mr. Ali Kazim A.D.C. (G) dated 20-7- 1972, remanding the case to the trial Magistrate, was without jurisdiction and further that the proceedings under section 145, Cr.P.C.Pending before the latter are not maintainable. As a result of the above discussion I set aside the impugned order of remand and also quash the proceedings under section 145, Cr.P.C. Pending between the parties. Since the house in question has, on the face of it, been in the possession of the petitioners, it is allowed to remain in their possession till such time the question of its title is decided by a Civil Court. In the meanwhile the petitioners shall deposit the monthly rent of the house in dispute, on the basis of the evaluation made by the Excise and Taxation Department, in the Court of the learned trial Magistrate, once in every three months, till the decision of the title by a Civil Court, provided, of course, that the respondent files a civil suit, within a period of four months from the date of this order.
Or der accordingly.