1. ' The dispute is over a sewerage passage between two buildings known as 'Noorbhoy Jafferji Building' and `Lotia Building'. The applicant claims that passage to be a separate plot bearing No, S. R. 8/B-VI-2/63 and that he was in possession of it for the last 13 years, while on the other hand, the second opponent denies its separate entity as a plot and claims it to be a part of Noorbhoy Jafferji Building bearing No, S. R. 3/7, and himself lays a claim to it as a landlord and one of the partners of the firm, "Noorbhoy Jafferji & Sons", who are in possession of it pursuant to a grant dating back to some 80 years. It is the case of the applicant that on 26th November 1969, the second opponent threatened to take forcible possession of the disputed space, which is a walled space with a door opening on Sarai Road, upon which he filed Suit No, 2259/69 in the Court of First Civil Judge First Class, Karachi and claimed a relief for permanent injunction ; and alongwith it he filed an application praying for an ad interim injunction. Notice on this application was issued for 27th November 1969. However, on that date the second opponent broke open the lock and forcibly took possession of the disputed space. The applicant thereupon lodged a report at Police Station, Mithadar that day at 10-30 a.m. And a case was registered and the second opponent arrested and released on bail. Subsequently, upon a report of the S. H.
2. 0., Mithadar, dated 4th December 1969 stating that there was an apprehension of breach of peace and that in the circumstances, proceedings be initiated under section 145, Cr. P. C. And that the disputed space be attached till the decision of the case, the S.D.M., Old Town, initiated proceedings under section 145, Cr. P. C. And asked for the written statements from the parties and also ordered attachment of the disputed space. Consequent upon the order of attachment, the S. H.
0. Prepared an inventory of the articles lying in the disputed space and after sealing it submitted the inventory to the Sub-Divisional Magistrate. The applicant on 26th December, 1969 submitted an application for the restoration of possession of the disputed space which was not, however, disposed of. The second opponent filed his written statement on 10th February, 1970. However, before the evidence was recorded in the case the application for ad interim injunction was disposed of as being infructuous by an order dated 30th May 1970 apparently on the footing of an admission by the applicant that the disputed space was in possession of the second opponent which, however, was not the factual position as on that date the premises was admittedly attached by an order of the S. D. M. Be that as it may, the suit was withdrawn by the applicant on 3rd July 1970 pursuant to an application filed under Order XXIII, rule 1, C. P. C. Giving out the reason that the criminal Court was already seized of the proceedings and in that view of the matter he would not pursue the civil proceedings. The applicant examined himself and three other persons named Abdus Sattar, Haji Zaheer and Din Muhammad while the opponent examined himself and five other witnesses including a surveyor from the C. D. C's office. The S. D. M. However, in spite of the evidence on record, reached the conclusion that he was unable to decide the question of possession and, therefore, vide his order dated 20th January, 1972 directed the parties to get the matter decided from the civil Court and pending such decision the disputed space was to remain attached. Against this conclusion, the applicant went in revision before the City & A. D. M., Karachi, who also conveniently disposed of the revision application on the footing that it was a just order but at the same time held that there was no evidence to sustain the jurisdictional fact that there was an apprehension of breach of peace. There is not even a mention of it in the final order. In that view of the matter, what justification there was for upholding that order and in not making a reference for quashing the proceedings, I am unable to understand. Even before me, none of the counsel for the parties invited my attention to this finding and both of them stated that the S. D. M.
3. Did not apply his mind to the question of possession, of which there was evidence on record.
4. However, they candidly conceded that no evidence points to apprehension of breach of peace. In the circumstances, I see no justification to remand the case for reconsideration of the question of possession since primarily, the foundation, upon which such proceeding rests, namely the apprehension of breach of peace, is not there and, therefore, the proceedings before the competent Magistrate were coram nonjudice. I would accordingly quash them. The parties are entitled to establish their claim as to their possession in a Civil Court, and to seek sue relief as is available to them if advised in that behalf.