' Through this Constitutional petition the petitioner seeks the setting aside of the order of the learned Additional Sessions Judge, Samundari, dated 2-12-1992 and for restoration of the order, dated 14-4-1991 passed by the learned Magistrate 1st Class, Samundari.
2. The brief facts of the case are that Muhammad Din and Noor Muhammad real brothers, were allotted an Ihata No,47/10/35 situate in Chak No,509/GB Tehsil Samundari, District Faisalabad in equal shares. Half of the share in possession of Muhammad Din predecessor-in-interest of respondents Nos.4 to 7 was given to respondent No,3 Muhammad Yaqoob. According to the learned counsel for the petitioner this Ihata was residential but subsequently its nature was changed into shops. The shop in possession of Muhammad Din was given to Muhammad Yaqoob but Muhammad Aslam respondent No,4 forcibly and deceitfully took over the possession of the entire shop on the ground that the shop was exclusively owned by his father. The litigation started between respondents Nos.4 to 7 and the petitioner up to the Board of Revenue and finally it was decided that both the brothers are allotted shops in equal shares. The Additional Commissioner (Revenue) on 30-5-1991 passed the order in this regard. Muhammad Aslam, according to the petitioner, rented out the entire shop to Muhammad Yaqoob respondent No,3. The petitioner moved an application for the demarcation of the property and on the direction of Assistant Commissioner, Halqa Girdawar, on 16-1-1991, went to the place and made the demarcation and Mutation No, 1821 was attested on 16-1-1991 Muhammad Yaqoob respondent No,3 got registered a case against the petitioner vide F.I.R. No,22 of 1992 at Police Station Mamukanjan. The police assuming the breach of peace sealed the shop and initiated proceedings against the parties uflde section 145, Cr.P.C. However, the learned Magistrate 1st Class, Samundari de-sealed the premises vide his order, dated 14-4-1991 and found that there was no breach of peace and also held that as the possession was delivered to Noor Muhammad petitioner and interference has been made after giving the possession to him. Feeling aggrieved by this order Muhammad Yaqoob filed revision petition against the petitioner and Muhammad Aslam and other legal heirs of Muhammad Din. The learned Additional Sessions Judge, after hearing both the parties vide his judgment, dated 2-12- 1992 accepted the revision and held that the order of the learned Magistrate under section 145, Cr.P.C. Is not sustainable. The revision petition was accepted through the impugned order and file was sent back to the learned Magistrate to restore the possession of respondent Muhammad Yaqoob within the four corners of section 145, Cr.P.C. The parties were directed to appear before the learned Magistrate on 22-12-1995. Hence this writ petition.
3. Learned counsel for the petitioner contends that the proceedings of demarcation which are Annexure 'C' of this petition shows that the Patwari on the direction of the Assistant Commissioner had gone to the spot and has given the possession to the petitioner. Then he has drawn my attention to the document Annexure 'B' which according to him is sufficient to prove that the two brothers, namely, Noor Muhammad and Muhammad Din were allotted the said Ahata in equal share. He has also drawn my attention to the cancellation report of case F.I.R. No,22 of 1991 in which the police found the version of respondent No,3 as false. He has also drawn my attention to Annexure 'D'. The suit was filed by Muhammad Yaqoob against the petitioner and respondents Nos.3 to 7 and it was dismissed for non-filing of the process fee, vide order, dated 20-3-1991. He further contends that it becomes crystal clear that the possession of the disputed shops were handed over to the petitioner by the Patwari in the presence of the Girdawar on the direction of the Assistant Commissioner on 16-1-1991 as per Annex. 'B'. Hence the proceedings initiated subsequently by the Ilaqa Magistrate under section 145, Cr.P.C. To flout the proceedings on the revenue side on the direction of the A.C. And to deprive the petitioner from the possession of the disputed shop. He further contends that Muhammad Yaqoob though filed the civil suit but it was dismissed and he never agitated against the dismissal of his suit. It is further contended that with mala tide intention on 18-1-1991 he filed the application for the proceedings under section 145, Cr.P.C. The learned Magistrate after recording the evidence came to the conclusion that the proceedings under section 145, Cr.P.C. Were without any justification as the possession was handed over to the petitioner on 16-1-1991 by the Revenue Authorities hence directed to hand over the possession to the petitioner on the basis of the document Annexure 'C' of this petition. Learned counsel also contends that the judgment of the learned Additional Sessions Judge is liable to be set aside as he has failed to pass an order on the facts borne out from the evidence on the record in the proceedings under section 145, Cr.P.C. He further contends that the learned Additional Sessions Judge has erred in law by not considering the documentary evidence produced by the petitioner during the proceeding, and he has not given, any importance to the demarcation proceedings by the Revenue Authorities on 16-1-1991. He has also not given any cogent reasons for allowing the revision petition and without considering the factual position of the dismissal of the civil suit filed by Muhammad Yaqoob before the Civil Court. He further contends that a bare perusal of the document shows that the petitioner was in possession of the disputed property when the order of dealing of the property was passed by the Ilaqa Magistrate. Hence the order passed by the learned Ilaqa Magistrate is sustainable in the eyes of law and the order passed by the learned Additional Sessions Judge in revisional jurisdiction is against law and facts of the case and is liable to be set aside.
4. Learned counsel appearing on behalf of respondent No,3 has drawn my attention to the documents placed on the record by the petitioner according to which Annexure 'C' only shows that the disputed place was demarcated and there is nothing about the heading over of the possession to the petitioner by the Revenue Authorities hence the document has rightly been read by the learned Additional Sessions Judge and the learned Magistrate failed to properly appreciate the proceedings of demarcation. Actually on 16-1-1991 the possession of the property was not given to the petitioner but only the property was equally demarcated between the two brothers to whom it was ' allotted. He has further contended that the suit filed by respondent No,3 was dismissed on technical grounds and does not deprive him from his possession which was lawful as he had obtained the shop on loan by the predecessor-in-interest of respondents Nos.4 to 7. Learned counsel has also drawn my attention to the documentary evidence as well as the oral evidence which shows that Muhammad Yaqoob was in possession when the shop was sealed in the proceedings under section 145, Cr.P.C. He has drawn my attention to the statement produced by the petitioner before the Ilaqa Magistrate who had admitted that Muhammad Yaqoob was in possession of the shop at the time of scaling of the shop by the learned Magistrate. Muhammad Saleem A.W.1 had admitted it correct that when the shop was sealed. Muhammad Yaqoob was in possession of the shop. Similarly Muhammad Ramzan A.W.2 has also admitted this fact to be correct. Muhammad Nadim A.W.3 has also admitted that Muhammad Yaqoob was sitting in the shop when the same was sealed by the Ilaqa Magistrate under section 145, Cr.P.C. He has further contended that the witnesses produced by respondent No,3 have supported the case of respondent No,3 that he was in possession of the shop even before two months of the passing of the order and at the time of de-sealing of the shop and passing of the final order by the Ilaqa Magistrate the possession was to be handed over to respondent No,3 who was a tenant and his possession was lawful. He further contends that respondent No,3 could not be ejected in the garb of proceedings under section 145, Cr.P.0. By the Ilaqa Magistrate. He has prayed for, sustaining of the order passed by the learned. Additional Sessions Judge in revision.
5. I have heard the learned counsel for the parties and also perused the record. The documents shown by the learned counsel for the petitioner for the demarcation of the, property do not indicate that the possession of the shop was handed over to the petitioner. The registration of case for taking over the possession was found to be false by the police and a cancellation report was prepared but there is no cancellation order passed by the Magistrate of the case. Hence mere submission of the report by the police will not be a strong piece of evidence against respondent No,3 that he was not in possession of the shop at the time of initiation of proceedings under section 145, Cr.P.C. The documents relied upon by the learned counsel for the petitioner shows that the demarcation proceedings were initiated but it is nowhere mentioned that the possession of the shop was delivered to the petitioner during the proceedings but only the demarcation of the property was made. It is nowhere mentioned that respondent No,3 who was a tenant and was evicted from the property hence the document relied upon by the learned counsel for the petitioner does not prove that Noor Muhammad was handed over the possession of the property at the time of demarcation. On the other hand Muhammad Yaqub respondent No,3 has succeeded in proving that he was a tenant was in possession of the property at the time of initiation of proceedings under section 145, Cr. P. C . This fact has been admitted by the witnesses produced by the petitioner before the Ilaqa Magistrate. During the cross-examination A.W.1 and A.W.2 have admitted it to be correct that Muhammad Yaqub respondent No,3 was sitting in the shop when the proceedings under section 145, Cr.P.C. Were initiated. Similarly respondent No,3 filed a civil suit for permanent injunction claiming to be a tenant of respondents Nos. 4 to 7 and prayed for restraining the defendants permanently from dispossessing him from the shop though this suit was dismissed due to non-submission of the process fee but it cannot be said that it was a decision on merits against respondent No,3. The basic question to be decided in this petition is that as to who was in possession at the time of initiation of proceedings under section 145, 'Cr.P.C. And to whom the possession was to be delivered by the Magistrate after the recording of the evidence. The learned Magistrate failed to properly appreciate the documents produced by the petitioner and he misunderstood that the possession was delivered by the Revenue Authorities to the petitioner on 16-1-1991. There is nowhere mention that the possession has been delivered to the petitioner. Hence the learned Additional Sessions Judge has rightly discussed all the evidence produced by both the parties and has come to a definite conclusion that Muhammad Yaqub respondent No,3 was in possession of the property when the shop was sealed. The judgment of the learned Additional Sessions Judge is fully supported by the evidence on the record. On the other hand the documents relied upon by the petitioner do not establish that the petitioner was in possession of the property when it was sealed. When it has been established that respondent No,3 who was a tenant was not legally evicted from the shop through process of law he cannot be deprived of his possession through the proceedings under section 145, Cr.P.C.
6. The judgment of the learned Additional Sessions Judge is based on cogent reasons and is supported by the documentary as also oral evidence and is.Sustainable n the eyes of law. This writ petition has no merit which is hereby dismissed with no order as to costs.
7. Respondent No,3 Muhammad Yacioob was in possession when the possession of property was taken over by the learned Magistrate. The learned counsel for the petitioner has tried to argue that now after the suspension of the impugned judgment the possession was delivered to Ghulam Muhammad who is a tenant of the writ petitioner. Hence it will cause complications if a direction is issued for the handing over of the possession to respondent No,3. Ghulam Muhammad admittedly was given the possession after the filing of this writ petition when the operation of the impugned judgment was suspended. Ghulam. Muhammad at the most has stepped into the shoes of the writ petitioner. He will sink and swim with the petitioner and he cannot retain the possession as his alleged landlord has been declared to be not in possession at the time of initiation of proceedings under section 145, Cr.P.C. Hence no complication will arise as the law is very clear.