GUL KHAN Versus MUHAMMAD HAFEEZ KHAN
ORDER
Gut Khan addressed a petition (revision) against the order of the learned Sessions Judge, Poonch, passed on February 27. 1992, whereby status quo was ordered in respect of land, the subject of dispute, in a revision addressed against the order of attachment passed by the Magistrates Ist Class, on February 24, 1992. In the counter‑application under section 561‑A, Cr.P.C., Muhammad Hafeez Khan has prayed for quashment of attachment order made by the Magistrate Ist Class, on February 24, 1992. As both the matters pertain to common subject of dispute, between the parties and arise out of the common order of the Magistrate of February 24, 1992, these are therefore, disposed of together.
2. The dispute pertains to land comprising Survey No.2168/1828, measuring 33 Kanals 8 Marlas and Survey No.1829, measuring 6 Kanals 8 Marlas out of 12 Kanals 16 Marlas, situate in village Kotehri Tain, Tchsil Rawalakot. The background emerging out of the litigation between the parties is that Muhammad Hafeez brought a suit, for possession by redemption of mortgage, against Mst. Ainum Jan and Gut Khan (petitioner), in the Court of Sub‑Judge, Rawalakot, on June 30, 1990, in respect of survey No. 2168, 1828, measuring 33 Kanals 8 Marlas. 1t was averred that Khush'hal Khan, father of Muhammad Hafeez mortgaged the suit land in the year 1990 Bk., for a sum of Rs:00 and transferred possession to the mortgagees (Gul Khan and Mst. Ainum Jan). On the death of Khushhal Khan, the property devolved on him. He was eligible to seek possession of the land by redemption of mortgage. Mst. Ainum Jan and Gut Khan in their written statement, repudiated the claim of Muhammad Hafeez Khan, in respect of the suit land and alleged that Talay Muhammad Khan was in possession of the suit land, w.e.f. 1990 Bk., as its owner. He died before 1947. On his death, Gut Khan occupied the land in his own right and acquired title in the land by virtue of adverse possession.
3. Gulzar Muhammad, Gurban Muhammad and Muhammad Hafeez brought another suit on June 30, 1990, for possession and declaration in respect of land measuring 6 Kanals 8 Marlas out of 12 Kanals 16 Marlas, comprising Survey No.1824, by redemption of mortgage. In the second suit, it was averred that the suit land belonged to Akbar Khan and Khush'hal Khan, in equal share. They mortgaged the suit land to Talay Muhammad Khan, father of defendant No. 1, for a sum of Rs.30. On the death of Talay Muhammad Khan, Mst. Ainum Jan, his daughter occupied the land. The plaintiffs were entitled to decree for possession by redemption of mortgage. In written statement in the counter‑suit, Mst. Ainum Jan and Gut Khan denied the claim of the plaintiffs and averred that Talay Muhammad Khan was in possession of the land as its owner w.e.f. 1990 Bk. He died before 1947, whereupon Gut Khan took possession of the land in his own right. He acquired title in the land by virtue of adverse possession. Both the suits were dismissed for want of prosecution on April 29, 1992.
4. Gul Khan brought a suit for declaration in the Court of Sub‑Judge Thorar, on February 12, 1992 claiming his exclusive title in the land by virtue of his adverse possession in respect of Survey No.2108/1828. Another suit was also instituted in respect of Survey No.1829, on the same grounds. These suits were in progress. The written statements were yet to be filed by Muhammad Hafecaz, Gulzar Muhammad and Ourban Muhammad Khan. Gut Khan also applied for interim injunction. The learned Sub‑Judge Thorar, issued interim injunction for maintenance of status quo in both the suits on February 12, 1992.
5. On February 22, 1992, Gut Khan moved an application under sections 1:45, 107, Cr.P.C. against . Muhammad Hafeez, Qurban Muhammad and Muhammad Fayyaz, Muhammad Israr, Muhammad Sajjad, Muhammad Hanif, Taqqi Muhammad and Muhammad Latif, in respect of land described above. It was alleged that Gut Khan, applicant was in possession of the land in his own right. The non‑applicants manoeuvred to dispossess him forcibly. They threatened his possession. He apprehended an imminent danger of peace and prayed for an action under Section 145,. Cr.P.C. He also requested for immediate attachment of the land and appointment of a receiver. The application was accompanied by an affidavit, copy of Khasra Girdawari for the year 1989‑91. The Magistrate made preliminary inquiry and recorded the statement of Gut Khan. The preliminary order was passed on February 24, 1992. The attachment was also made. The order of attachment was challenged in revision before the Sessions Judge by Muhammad Hafeez and others. They also moved' an application for status quo. The learned Sessions Judge vide order passed on February 27, 1992, in application directed maintenance of status quo. This order has been, challenged in a revision before this Court.
6. Sardar Muhammad Sadiq Khan, the learned Counsel for Gull Khan contended that after passing of the order of attachment, the learned Sessions Judge should not have issued the impugned order in the shape of "maintenance of status quo". Reference was made to the pleadings of Muhammad Hafeez and others, to impress that the land at the time of issuance; of stay order and its attachment by the Magistrate, was in possession of Gul Khan and not Muhammad Hafeez and others. Raja Sher Muhammad Khan, the learned Counsel for Muhammad Hafeez Khan and others, argued that the land, in fact, was in possession of Muhammad Hafeez and others who had constructed shops over the same. Moreover, it was argued that in presence of interim injunction issued by the Sub‑Judge, proceedings under section 145, Cr.P.C. were not maintainable. The learned Counsel argued that a criminal case on the charge of criminal trespass in the land was also registered against Muhammad Hafeez and others. In such situation, on success of criminal proceedings, property was liable to be restored to the actual owner, under the provisions of Criminal Procedure Code.
7. It is admitted to the parties that civil suits for possession and for declaration described in the operative part of this order, were instituted at respective times. The suit for possession by redemption of mortgage instituted by Gulzar Muhammad, Qurban Muhammad and Muhammad Hafeez were dismissed for want of prosecution. Nevertheless, it was evident from their pleadings that they sought possession of the suit land by redemption of mortgage from Gul Khan. Gul Khan, conversely, alleged his own title by denying the claim of his opponents, on account of acquisition of right to possess the suit land by virtue of his adverse possession. The suits instituted by Gul Khan in respect of the suit land were in progress. Moreover, Gul Khan secured interim injunction from the Court of Sub‑Judge, at the time of institution of the suits. The interim injunction was still in existence as no objections for vacation of the same were filed by this time. Written statements in both the cases arc also yet to be filed.
8. The order of attachment of the land in dispute was passed by the: Magistrate (Additional Sub‑Judge Rawalakot), on the application of Gul Khan. It appears that in his application under sections 145, 107, Cr.P.C. Gul Khan Failed to disclose the issuance of interim injunction by the Sub‑Judge, Thorar, in his favour. Nevertheless, the Additional Sub‑Judge, Magistrate Ist Class, Rawalakot felt satisfied to pass the preliminary order and order of attachment, of the subject of dispute, in exercise of powers under section 145, Cr.P.C.
The provisions of Section 145, Cr.P.C. were enforced to provide speedy remedy to an aggrieved person in respect of a dispute concerning the land, water or boundaries thereof, within the local limits of jurisdiction of the Megistrate. In order to invoke the jurisdiction of the local Magistrates, there were conditions precedent that (i) the dispute must exist concerning the land, water and boundaries thereof; and (ii) there must be a likelihood of breach o the peace on account of such a dispute. On the satisfaction of these conditions,) the Magistrate was empowered to assume jurisdiction by recording preliminary order and to direct the parties to put in their written statements in respect oft their respective claims, relating to actual possession of subject of dispute. On the conclusion of the inquiry, whosoever was found in actual possession of the subject of dispute, on the date of information or application, as the case may, be, or 2 months before that date, the Magistrate was enjoined upon to restore 'A the possession to the party which was forcibly and wrongfully dispossessed.
9. Under the proviso laid down under subsection (4), the Magistrate was further empowered that whenever in the light of the facts placed before him, he considered the case one of the emergency, he was authorised to make attachment of the subject of dispute pending the decision.
10. As against the scheme of section 145, Cr.P.C. the disputes relating to title or right to possess land, water or boundaries thereof, were of civil nature and Civil Court alone was competent to decide such disputes. This is why the Magistrate was not empowered in lay his hand on the cantroversy relating to title of the parties, in the subject of dispute. The question of title was to be determined exclusively by the Civil Court.
11. The other aspect of the proposition is that once the Civil, Court took the cognizance of the subject of dispute and issued interim injunction or appointed its receiver, or passed a decree, such orders of the Civil Court were to be given complete effect. Whenever any dispute in respect of such property arose between the parties, the Magistrate or the police, as the case may be, was empowered to take measures in order to maintain the peace, under section 107, Cr.P.C. It was not permitted to proceed under section 145, Cr.P.C. and to pass the order in derogation to the order of the Civil Court. Of course, when mere civil suit was instituted and no interim injunction was issued or receiver was appointed or decree was finally passed, the institution of the civil suit would not stand in the way of Magistrate to exsrcise powers under section 145, Cr.P.C. and make attachment of the subject of dispute. This was an exception to the aforesaid rule. This principle finds approval of the Supreme Court of Azad Jammu and Kashmir in Suleman's case (1983 PCr.LJ 2590), Muhammad Ashraf Khan's case (1981 PCr.LJ 1018 and Mst. Fatima's case (1971 SCMR 449).
12. It is noticed that on institution of separate suits by Gul Khan, in respect of the subject of dispute, he also secured interim injunction whereby was ordered to be maintained. In second round, he moved an application under sections 145, 107, Cr.P.C. to secure the order of attachment of the property from the Magistrate. The order of attachment, prima facie, tantamount to interference in the order of the Civil Court. Thus, in such situation, an interference in the shape of attachment was not permissible. The consensus is that the Magistrate should refrain from passing an order mi derogation to the direction of the Civil Court.
13. It appears that Gul Khan did not feel secured by getting interim injunction of the Civil Court and felt advised that unless property was attached and delivered in the `spurdari' of a third party, the opposite party would definitely dispossess him forcibly from the suit land. As a lay man, his action may be justified but the fact of the matter is that the scheme of law does not permit such an action resulting in conflict of jurisdiction of the Civil Court and the Magistrate.
14. Raja Sher Muhammad Khan, the learned Counsel for Muhammad Hafeez, sought quashment of the proceedings in exercise of powers under section 561‑A, Cr.P.C. on the grounds of:‑
(i) presence of interim injunction issued by the Civil Court; and
(ii) defect in preliminary order passed under section 145(1), Cr.P.C.
The legal aspect of the proposition concerning issuance of interim injunction by the Civil Court and passing of attachment order by the Magistrate, has already been appreciated elsewhere. The second objection pertains to technical defect in passing of preliminary order under section 145(1), Cr.P.C. The requirements of preliminary order under section 145(1), Cr.P.C. are that the Magistrate, first of all, must have jurisdiction over the subject of dispute. Thereafter, the Magistrate must be satisfied from the report or information than a dispute existed in respect of any land, water or boundaries thereof, within the local limits of his jurisdiction; and that there was likelihood of breach of the peace, on account of such dispute. The satisfaction of the Magistrate has to bet disclosed in the shape of reasons in the preliminary order. Besides, the Magistrate has to direct the parties to attend his Court within time tired by him, in order to put in written statements of their respective claims, in respect of the fact of actual possession of the subject of depute. In the present case the requirement of the preliminary order was not shown to have been satisfied in strict manner. However, the Magistrate was shown to have been satisfied from the information furnished to him by Gul Khan, in the shape of his application supported by an affidavit and statement made by him in preliminary inquiry that a dispute between the parties in respect of the land situate within the local limits of the jurisdiction of the Magistrate, existed. He was also satisfied that the matter was emergent on account of dispute between the parties.
15. The framing of a preliminary order under section 145(1), Cr.P.C. was purely a procedural matter. Any procedural mistake, defect or error, was liable to rectification in exercise of powers under section 537, Cr.P.C. Thus, an order of the Magistrate could not be thrown away merely on account of irregularity liable to rectification. In the present case, the defect in the preliminary order pointed out by the learned Counsel for Muhammad Hafeez and others, is purely a procedural defect. This, by itself, does not vitiate the proceedings as a G whole. Therefore, indulgence in such an order in exercise of inherent powers under section 561‑A, Cr.P.C. is not deemed expedient, This view finds support from Serghan Shah's case (1972 SCMR 562), Noor Muhammad's case (1971 SCMR 245) and Durga Prasad's case (AIR 1959 Assam 54).
16. It was also argued that in presence of criminal case on the charge of criminal trespass, the matter should be left to the Criminal Court to restore the possession of the property on finding the accused guilty of criminal trespass. The contention is not sustained. The facts of the present case are not identical to the authority laid down in Abdul Rashid's case (1983 PCr.LJ 42).
17. It was rightly pointed out by the learned Counsel, Sardar Muhammad Sadiq Khan, that the learned Sessions Judge misdirected himself by issuing order of status quo in the revision petition addressed against the order of attachment of the property. The proper course for the learned Sessions Judge was to direct the parties to seek vacation of order of attachment before the Magistrate, by satisfying him that the attachment was unwarranted. In the alternative, the order of status quo should have been passed only in presence of better evidence and by hearing Gul Khan who secured the order of attachment] The order of learned Sessions Judge is, therefore, quashed. The petition moved under section 561‑A, Cr.P.C. merits no consideration. It is, therefore, dismissed.
18. It is noticed elsewhere that in presence of interim injunction issued by the Civil Court, it was not proper for the Magistrate to pass the order in derogation to the direction of the Civil Court. In such situation, the Magistrate was empowered to proceed under section 107, Cr.P.C. In the present case, as the Civil Court has already issued order of interim injunction in the shape of maintenance of status quo, at the request of Gul Khan, to maintain his possession in the land in dispute, in such situation, an order under section 145, Cr.P.C. whereby the land was attached, was unwarranted. Therefore, the order of attachment is quashed. The Magistrate is left free to proceed against Muhammad Hafeez and others under section 107, Cr.P.C. The petitions are disposed of accordingly.
N.H.Q./523/H.C.A ????????????????????????????????????????????????????????????????????????????? Order accordingly.