' MUHAMMAD YUNUS SURAKHVI, J.--Through this appeal, with the leave of the Court, the correctness and legality of an order recorded by the High Court, on June 13, 1996, has been assailed, whereby on the reference, sent by the Sessions Judge, Mirpur the High Court concurred with his view and accepted the same.
2. The precise facts, of the case are that both the parties are proprietors in village Kalyal-Bainsi. The dispute relates to land measuring 5 Kanals and 14 Marlas entered in Survey No,4196 which is admittedly Shamlat land of the said village. Respondent Hafiz Muhammad Sadiq moved an application before S.D.M. Magistrate 1st Class, Mirpur on 7-1-1990, stating therein, that land measuring 5 Kanals comprising Survey No,4196, situate in village KalyalBainsi, Tehsil Mirpur, was in his continuous possession and that non-applicants wanted to dispossess him from the said land and get its possession. It was stated in the application that non-applicants had tried to forcibly get the possession of the land on 6-1-1990 and as such there was apprehension of breach of peace. A prayer was made for the attachment of the land and for initiating proceedings under section 145, Cr.P.C. The learned trial Magistrate, on examination of the relevant material proceeded under section 145, Cr.P.C. And passed an order of attachment of the said land in view of the apprehension of breach of peace. Objections on behalf of non-applicants were filed on 27-1-1990. On 7-2-1990 the arguments were heard by the trial Magistrate and-it was held that according to Khasra Gardawari land in dispute was in possession of respondent Hafiz Muhammad Sadiq. Since a civil suit filed by Hafiz Muhammad Sadiq, respondent, with regard to the said land had been decided by the Civil Court on 26-8-1989, thus the learned trial Magistrate restored the land in favour of respondent. It was further directed by the Magistrate that respondent should remain in possession of the land in question and the non-applicants therein shall not interfere in his possession. A revision petition was filed in the Court of Sessions Judge, Mirpur whereby he maintained the order passed by the trial Magistrate but on a further revision in the High Court the orders of trial Magistrate as well as the Sessions Judge were set aside on 24-12-1990 on the ground that the documents relied upon by the Courts below were not tendered into evidence. A direction was issued that the case may be decided afresh after affording opportunity of evidence to the parties.
But this time the case was transferred to the file of the Additional Sub-Judge/Magistrate 1st Class, Mirpur, who resumed the proceedings and recorded the evidence of both the parties. The learned trial Magistrate disposed of the case vide his order dated 31-12-1994 and dismissed the application filed by Hafiz Muhammad Sadiq, respondent/petitioner on the ground that he was not an exclusive owner of the land in question on the basis of judgment of Civil Court recorded on 26-8-1989 and the same was Shamlat-Deh land, being in the ownership of whole of proprietary body as such he was entitled to no relief. It was also observed that respondent had admitted in his statement that non-applicant Muhammad Rashid had raised a fence and also built a Chappar in the land in question. On a revision petition filed by Hafiz Muhammad Sadiq the learned Sessions Judge, Mirpur vide his order dated 9-9-1995 recommended through a reference that respondent Hafiz Muhammad Sadiq was in possession of the land in question and was also one of the owners, therefore, the order of trial Magistrate may be quashed. The High Court vide the order impugned in the present appeal accepted the reference made by the learned Sessions Judge and directed that the land in question shall be restored to Hafiz Muhammad Sadiq and that non-applicants would not interfere with his possession on the grounds enumerated below:--
(i) that oral statements of the witness produced by the non-applicants are not worthy of any credit, particularly when in their objections they have not made any assertion with regard to their possession over any portion of the disputed land;
(ii) that non-applicant Rehman has stated in his objections that land in question is in possession of the owners of the village as such it will be deemed that he has not claimed any portion of the land having in his exclusive possession;
(iii) that the evidence which is against the pleadings of non-applicants cannot be looked into;
(iv) that a copy of Khasra-Gardawari produced by respondent/petitioner shows his possession over the land measuring 5 Kanals, 14 Marlas out of which there is a mosque constructed in 14 Marlas of land, whereas the rest of land measuring 5 Kanals was in possession of respondent on the date the application under section 145, Cr.P.C. Was moved; and
(v) that the copy of the judgment recorded by Civil Court produced by respondent Exh.PA shows that it was held by Civil Court on 26-8-1989 that Hafiz Muhammad Sadiq was one of the owners in the land in dispute and was in its possession. This judgment of Civil Judge was maintained by the District Judge vide his order dated 27-6-1990.
3. Raja Muhammad Siddique Khan, the learned counsel for the appellant vehemently contended that respondent miserably failed to establish his possession on the land in question on the date of application moved by him before the trial Magistrate or within two months next before such date, as such the proceedings were liable to be quashed. Thus, the order recorded by the trial Magistrate was fully justified. It was further submitted by the learned counsel for the appellant that the learned Sessions Judge as well as the High Court committed a grave illegality by ignoring the basic ingredients of section 145, Cr.P.C. According to the learned counsel, in the civil suit filed by respondent Hafiz Muhammad Sadiq, it was admitted in the plaint that out of the land in dispute 45 sq. Karams had been forcibly taken into possession by the non-applicants. So, the Civil Court was competent only to grant that much of relief which was claimed by the plaintiff in the plaint and nothing more. Similarly, according to the learned counsel, the documents produced by the parties were to be interpreted in the light of the facts admitted or pleaded. But the Civil Court failed to appreciate the above stated legal proposition in its true perspective. It was further contended by the learned counsel that the learned Sessions Judge as well as the High Court failed to take note of an important factor that dispute between the parties was not such on the basis of which it could have been said that it was likely to cause breach of peace so as to attract the provisions of section 145, Cr.P.C. The impugned judgment recorded by the High Court, according to the learned counsel for the appellant, being not in conformity with the provisions of section 145, Cr.P.C. Was liable to be quashed. Hafiz Muhammad Sadiq, respondent, who was not represented by any counsel, controverted the contentions raised by the 4earned counsel for the appellant. He stated in the open Court that in civil litigation the Sub-Judge as well as the District Judge have concurrently recorded the findings of possession in his favour regarding the land in dispute.
4. We have given our due consideration to the points raised at Bar and perused the relevant record with utmost care.
5. At the very outset it may be stated that the jurisdictional requirements for proceedings under section 145, Cr.P.C. Are--
(i) existence of the dispute;
(ii) likely to cause breach of peace;
(iii) concerning land or water or the boundaries thereof; and
(iv) within the territorial limits of the jurisdiction of the Magistrate.
' The object of exercising jurisdiction under section 145, Cr.P.C. Was to prevent parties to fight over possession of immovable property and to shed brood and disturb peace. Decision of title of parties over disputed property was not intended by section 145, Cr.P.C. The purpose of proceedings under section 145, Cr.P.C. Is to meet an emergency as a stop-gap to maintain peace and, enable the parties to seek their redress about title or claim of right to possess the subject of dispute in a Civil Court. Ultimate arbiter to determine title of right to possess the subject of dispute is the Civil Court and not the Magistrate. It does not suffice for proceedings under section 145, that there should be a dispute but it is necessary also that there should be a dispute likely to cause the breach of peace.
7. In case reported as Fazal Haq and another v. Muhammad Latif and others PLD 1985 SC 294 the following observations were made at page 296:-- "Under the scheme of section 145, Cr.P.C. a Magistrate can act only if he is satisfied that 'a dispute likely to cause breach of peace exists' and it is on such satisfaction alone that he shall make a preliminary order under subsection (1) and thereafter make an inquiry under subsection (4) for deciding whether any and, if so, which of the parties was at the date of the order in possession and for this purpose, according to the first proviso to this subsection, he may treat the party which had, within two months next before the date of the order, been forcibly and wrongly dispossessed as if he had been in possession at such date, and if in the result of the inquiry he decides that one of the parties was or should be treated as being in such possession, he shall, under subsection (6), issue an order declaring such party to be entitled to possession until evicted therefrom in due course of law and if he proceeds under the first proviso to subsection (4), he may restore to possession the party forcibly and wrongfully dispossessed. It has to be kept in mind that the inquiry has to be limited to the question as to who was in possession in fact on the date of the preliminary order irrespective of the question as to the right to possession of the parties or to their title to the property.
' Since the pre-condition to the applicability of section 145, Cr.P.C. Is the existence of a dispute likely to cause disturbance of the peace, subsection (5) requires the Magistrate, in case no such dispute exists or has existed, to cancel his order made and stay all further proceedings. It is thus obvious that an infringement of private rights or dispossession of any of the parties or the existence of a dispute relating to immovable property is pre se not enough to attract the provisions of section 145, Cr.P.C. The section is designed to meet an emergent situation posing threat to peace and cannot be used for settling the right of the parties or their claim to title. This makes the import and purpose of subsection (5) clear. Where, therefore, the Magistrate finds that no breach of the peace exists, he has no jurisdiction to make an order regarding the subject of the dispute."
' Similarly in case reported as Fazal Karim v. Muhammad Rafique 1986 PCr.LJ 1681, it was observed at page 1682 as under:-- "As required by section 145, Cr.P.C. The Court can take cognizance only on satisfaction of two conditions; firstly, that there exists a dispute between the parties over possession of immovable property and secondly, that the dispute existing between the parties is likely to cause breach of peace."
' In case reported as Muhammad Latif v. Fazal Haq and others 1990 PCr.LJ 1123 the following observations recorded at page 1131 may usefully be reproduced:-- "The object of section 145, Cr.P.C. Is to prevent disturbance to the public tranquility and to protect the realm from riots and civil commotions, in cases where disputes over property are likely to cause breach of the peace. Where dispossession of property is not accompanied with any apprehension of breach of peace the proper remedy is an action for criminal trespass where the Magistrate can also restore to the aggrieved party the property from which he was dispossessed, under section 522, Cr.P.C. Or an action for possession in a Civil Court. It is only where breach of peace is likely or apprehended that action under section 145, Cr.P.C. Becomes permissible. If, after receiving statements of the parties and receiving all such evidence as may be adduced by them, a Magistrate considers that dispute likely to cause a breach of the peace existed when he passed his initial order under section 145(5), Cr.P.C. Calling upon the parties to file their statements of the case, he is duty bound to go into the question as to which of the parties was on that date in possession of the disputed property and if it appears to the Magistrate that any party had within two months next before the date of such order been forcibly dispossessed, to treat the said party so dispossessed, as if he had been in possession on such date. But where the Magistrate finds that there was no such dispute when he called upon the parties to submit their statements of the case, he had no jurisdiction to further decide under section 145(4), Cr.P.C. The question as to which party was in possession, for he can only drop the proceedings under section 145(5), Cr.P.C. And to pass such consequential order to restore status quo ante."
8. The survey of case-law as well as the plain reading of section 145, Cr.P.C. Makes it abundantly clear that the mere disputes concerning the possession of immovable property etc. Are not within the jurisdiction of Magistrate; it is only those disputes which are likely to cause breach of peace which fall within the jurisdiction of Magistrate for proceeding under section 145, Cr.P.C. In the instant case, although, it was alleged by the respondent in the application moved under section 145, Cr.P.C. That the dispute regarding the possession of subject of dispute was likely to cause breach of peace and even one day prior to the filing of the application, the non-applicants, tried to forcibly get the possession of the land but when he appeared as his own witness before the trial Magistrate, he did not utter a single word regarding the existence of the dispute likely to cause breach of peace. Thus, the assertion made in the application remained unsupported by the statement of Hafiz Muhammad Sadiq. No other evidence was produced by him. The non- applicants have also denied the existence of the dispute likely to cause breach of peace. An important test for determining the question of breach of peace is when both the parties start asserting their right of possession over the subject of dispute physically but this ingredient is also lacking in the present case. The non-applicants in their objections never asserted their possession over any portion of disputed land. In the circumstances the question of apprehension of breach of peace would not have arisen. This being me position the Courts below, including the High Court, unnecessarily embarked upon the question of determining the possession on the relevant date or two months before the preliminary order.
9. During the pendency of proceedings under section 145, Cr.P.C. Both the parties relied upon the judgment and decree passed by the Sub-Judge and District Judge, Mirpur dated 26-8-1989 and 27-6-1990 respectively. The possession of the subject of dispute was regulated by Civil Court. It was held by the judgment and decree passed by the Sub-Judge, Mirpur dated 28-8-1989 that respondent/plaintiff was in exclusive possession of the land in dispute. It was also observed that respondent/plaintiff was one of the owners of the land in question. These findings were concurred by the District Judge vide his judgment and decree dated 27-6-1990. The learned counsel for the appellant wants us to hold that the findings recorded by the Civil Courts were not compatible with the prayer made by the respondent/plaintiff in his plaint. The learned counsel is of the view that the Civil Courts should have granted only that much of relief which was claimed by the plaintiff/respondent and nothing more. Be that as it may we are unable to subscribe to the view expounded by the learned counsel for the appellant for the very simple and plain reason that the judgments and decrees recorded by Civil Courts have attained finality. The appellant, being a party to the proceedings before the Civil Court, did not feel advised to challenge the said findings.
Thus, the findings which have attained finality cannot be reopened as suggested by the counsel for the appellant, especially while hearing the appeal arising out of proceedings under section 145, Cr.P.C.
10. For the reasons stated above, we have come to the conclusion that the learned Sessions Judge as well as the High Court were not vested with any jurisdiction to proceed in the instant case under section 145. Cr.P.C. Especially when there was no apprehension of breach of peace. Thus, the orders recorded by both of them dated 9-9-1995 and 13-6-1996 respectively are hereby quashed. The trial Magistrate vide his order dated 31-12-1994, though dismissed the application under section 145, Cr.P.C., but the grounds made basis for its dismissal were totally irrelevant for the purpose of disposal of application under section 145, Cr.P.C. As he had been unnecessarily endeavouring to determine the title of the parties which is the least requirement of section 145, Cr.P.C. In this view of the matter the proceedings initiated under section 145, Cr.P.C. Are hereby quashed and the application filed by the respondent stands dismissed, as held by the trial Magistrate but totally on different grounds than those adverted to by the learned Magistrate. The appeal, thus, stands accepted in the terms indicated above.
Appeal accepted. PLD 1097