QAMRUDDIN- Versus STATE

This is an application seeking to set aside the order of the learned ‑Sub‑Divisional Magistrate Nazimabad Karachi in Case No. 240 of 1970 under section 145 Criminal Procedure Code holding that respondent No. 3 namely Syed Muhammad Zakir was in possession of the land which was disputed namely survey No. 135 of Deh Gondaps Tapo Gabapat in District Karachi and that he be allowed to remain in such possession until legally evicted and forbiding all disturbances and preventing all the parties to the dispute from committing any breach of peace.

2. There is in this case considerable confusion of the facts and I do not think that sufficient attention has been paid to the all‑important question as to who was in possession at the time of the commencement if the proceedings, all the parties thereto concentrating upon the previous history of the property in dispute and various agreements. The evidence reads as if what was being debated was the title to the land, and, although of course the purpose of going into these matters was really to establish possession, it seems to me that both the parties and, regretably the learned Magistrate, has concentrated upon this evidence which, in my view, the best might usefully have led to a confusion as to entitlement of possession rather than the actual fact of possession and the latter, which was the only important question to be decided, has been somewhat lost sight of in the welter of confusion which has arisen on account of this approach to the case. This is not to say, of course, that in the final order the learned Magistrate has not given a finding as to actual possession which he held was that of Syed Muhammad Zakir who is the 3rd respondent before me. Rather it seems to me that this finding, although purported to be given, is given at most upon the basis of an entitlement to possession rather than actual possession.

3. The proceedings commenced before the Sub‑Divisional Magistrate by reason of a police report made by the Manghopir Police under Section 145, Criminal Procedure Code and that is in these terms:

"IN THE COURT OF THE ASSISTANT COMMISSIONER

& S. D. M., NAZIMABAD, KARACHI

Case No. 240/1970

The State v. Qamruddin and others under section 145, Cr. P. C.

From P. S. Manghopir, Karachi, Report under section 145, Cr. P. C.

In the Court of the S. D. M. Nazimabad, Karachi No. 1.

Party No. 1.‑Qamaruddin s/o Jeeva Bhai, r/o Qamar Poultry Farm, Valika Out Post, Manghopir Road.

Party No. 2.‑Sar Baluch s/o Ghulam Muhammad r/o Out Post Mocka, Ilyas, Karachi.

"2. Syed Muhammad Zakir s/o Syed Nasir Hussain caste Syed, r/o Clayton Road No. 15, Amil Colony No. 1, Karachi.

Sir,

It is submitted that on 18th July 1968, Sar Baluch s/o late Ghulam Muhammad sold a plot of land bearing survey No. 135, and measuring 20 acres and 10 `ghuntas', situated in Deh Gondiari Tapo Getho Hata, District Karachi to Syed Zakir Hussain for Rs. 15,412.50 and received Rs. 1000 as advance on the same day and it was decided between the parties that the aforesaid purchaser shall pay the full amount when the Ist party (i.e.) Sar Baluch shall obtain permission to sell the same from the Collector of Karachi and get the sale deed registered before the Registrar."

The said matter has not yet been concluded and nor any amount except the advance money of Rs. 1,000 has been paid to Sar Baluch derived. any benefit from his land during period i.e. the land was given on profit for about 3 years under the Sale deed of Rs. 1000 of his land to Party No. l Qamaruddin Jeeva Bnai and others and gave full possession to him also. When Mr. Jadoon learnt the same, filing of applications started the said land is in the shape of barren land. Sar Baluch. owner of the land, in spite of making transaction with Qamaruddin, gave a written receipt to Muhammad Zakir, Attorney of Mr. Jadoon and made the land more disputed from the said writing.

Under the said circumstances, the cause of tension between the of patties has been increasing. The report of the proceedings under section 107/117, Cr. P. C. has been sent.

It is requested that the aforesaid parties may be summoned and after hearing proper decision regarding ownership and possession may be: given and both the parties may be bound down not to try to occupy the land till the decision. The report is submitted.

Detail of Papers

1. Applications of Nawab Jadoon

2. The Notice to Sar Balueh

3. Photostat copy of newspaper cutting dated

26‑1‑67

4. Photostat copy of Rs. 2 stamp

5. Photostat copy of agreement

6. Photostat copy of Rs. 1.50 stamp

7. Photostat copy of Rs. 1.50 stamp

8. Photo copy of the copy of the office of the

D. C. Karachi ...

9. Copy of Rs. 2 stamp in the name of Sar

Baluch

10. Copy of agreement Sar Baluch

11. Copy of Rs. 2 stamp in the name of Sar

Baluch ...

12. Notice to Qamruddin

13. Copy of Application to the Ilaqa

Magistrate Manghopir

14. Copy of Application in the name of Sar

Baluch ...

15. Copy of Receipt of Rs. 1,050 ...

16. Power of Attorney in the name of Jadoon

3

1

1

One in the name

Of Sar Baluch

One in the name

Of Allah Warayo

One in the name

Khan and other

One in the name

Of Rustam Khan

One

One

One

One

One

One

One

One

Six

(Sd.)

I shall revert to the language of this document for in my view, whatever, be the correct assessment of the evidence led by parties it is this document and the subsequent conduct of the proceedings which suffices to determine the case before me but it would be convenient first briefly to state what the conflicting versions of the parties were. It will be seen that the first party that is so designated in this police report consists of two persons namely Qamruddin and Sar Baluch who are the applicant and respondent No. 4 before me and that party No. 2 likewise consists of two others, namely Nawab Jadoon and Syed Muhammad Zakir, who are respondents No. 2 and 3 before me while respondent No. 1 is the State. Of all these parties mentioned respondent No. 4 though examined as a witness before the learned Magistrate has not appeared before me either in person or through counsel. This is perfectly understandable because, in any view of the matter, he is no longer interested in the property having sold it either to the applicant or to respondents 2 and 3 but in the course of the proceedings before the Magistrate he lent his support, for what it was worth, to the applicant. The case of respondents 2 and 3 was that in the year 1966 one Moosa entered into an agreement with Syed Muhammad Zakir through Nawab Jadoon, acting as the Attorney of Syed Muhammad Zakir agreeing to sell to him an area of land totalling about 133 acres which includes survey No. 135 which is the subject‑matter of the present dispute but the entire area consists of a considerable number of the other survey Nos. also. The price agreed to be paid was Rs. 1,00,000 of which earnest money of Rs. 500 was paid and as the agreement shows that Moosa Khan was to obtain permission from the executive authorities to sell the land and when this had been done and the actual conveyance given possession would also be transferred. Nevertheless about 4 months after this agreement Syed Zakir Hussain, again acting through Jadoon Khan, entered into a fresh agreement with Sar Baluch for buying survey No. 135 only for the price of Rs. 15,412.50 and of this price a sum of Rs. 1,000 was given by way of earnest money and here again the land was to be physically transferred only after registration had been completed which in turn could be done only after the necessary permission. Sar Baluch is said to be the grand‑son of the brother of Moosa who it seems died in between the dates of these two agreements. It does indeed seem somewhat odd that Zakir should have agreed to purchase a large block of land from one person and within four months thereafter made a separate agreement for one portion of that land from somebody else and this could possibly be explained on the basis of one of two hypothesis. It could be that in regard to this actual survey No. there was a dispute between Moosa and Sar Baluch that Muhammad Zakir may have wished to pay off Sar Baluch instead of buying litigation. On the other hand it might also be that, upon the death of Moosa by reason of inheritance, this particular piece of land came to the share of Sar Baluch. There is no evidence whatever upon the point and, in the ordinary way, this should have not mattered at all because what the learned Magistrate was concerned with was actual physical possession. As I have already stated however, parties really sought to establish actual possession by means of inference from documents which at best could have been utilized only for the purpose of entitlement to possession and I should have thought, in these circumstances, that this matter should have been clarified but it was not. Presumably learning of the sale or intended sale by Sar Baluch to Qamruddin the appellant before me, a notice appeared In the 'DAWN' an English Daily Newspaper published at Karachi dated the 26th January, 1967 by an Advocate, the name of whose client is not mentioned but it clearly was on behalf of Muhammad Zakir, to the effect that the Advocate's client had agreed to purchase from a number of persons who include Sar Baluch various survey Nos. of the land which are the same as are mentioned in the original agreement with Moosa and which of course includes survey No. 135. This was followed, though after considerable time that is on the 18th December 1969, by a notice from Syed Muhammad Zakir himself to Sar Baluch reminding him that he had entered into an agreement to sell survey No. 135 to himself and complaining of a breach of that agreement. It winds up with a demand that the agreement be carried out within 15 days of the date of the notice failing which legal action would be taken.

4. The case of Qamruddin as stated in his written statement was that Sar Baluch had sold to him the survey No. 135 by a registered sale deed on the 4th February 1970 with the prior permission of Deputy Commissioner Karachi and had put him in possession of the land actually and physically where-after he, Qamruddin had continued to be in possession which had never been disturbed or interfered with. In regard to the claim of Muhammad Zakir he stated that while Muhammad Zakir may have any grievance against the vendor, that is Sar Baluch, that would not confer upon him a right to dispossess Qamruddin from possession of the land in question.

5. Clearly except as to the actual possession on the material date which of course is the date of the report made to the Magistrate, there was no real contradiction of facts between the parties. Qamruddin it is true did not in so many words agree that there had been any previous agreements between Sar Baluch and Muhammad Zakir but treated that question, quite ,rightly I think, as immaterial, while Muhammad Zakir has claimed that he was put in possession when Sar Baluch had contracted to sell the land to him in July 1966 and that he continued to be in possession thereafter.

6. Little if any reliable evidence was led by Zakir Hussain as to his possession of the property. Such as it was it consisted of the statement of Nawab Khan Jadoon to the effect that possession of the property had been handed over by Moosa Khan alongwith the other survey Nos. at the time of the original agreement. Beyond that reliance was placed upon certain land assessment receipts but the curious feature of these receipts is that although they show that have been paid by the wife of Zakir Hussain they purported to be on behalf of one Sundar Lal. Now it is well known that in the Revenue Department land assessment can be paid by any person but then it would have to be paid on behalf of the Khatedar and who this Sundar Lal was has been explained by nobody. The assessment receipt would have been valuable if it was stated to be paid either on behalf of Moosa Khan or on behalf of Sar Baluch and could then possibly have been one item of evidence, though not conclusive, that since the payment was made by the wife of Zakir Hussain presumably the possession was that of Zakir Hussain. When I asked learned counsel who appeared before me on behalf of Zakir Hussain as to who this Sundar Lai was the utmost that he could say was that Sundar Lal might have been the original owner that is to say the person from whom Moosa Khan purchased the property. This was obviously unsatisfactory for even in the context of attempting to show possession by means of these documents it should at least have been necessary to show how this name crept in. I might add that the assessment receipt in question, although it does show the name of the deh does not mention the survey No.

7. That is also obviously a contradiction between this evidence and the original agreement with Moosa Khan which clearly recited that the possession was to be given after the execution of the sale deed. Admittedly the sale deed has not been completed and it does seem extremely unlikely that the vendor would have parted with the possession of the property which he was selling for Rs. 1,00,000 against an earnest money only of Rs. 500. The witnesses to the agreement with Moosa Khan were examined and they say that possession was given to Muhammad Zakir or Nawab Jadoon on his behalf after Sar Baluch entered into an agreement but it is obvious that this cuts across the allegation in regard to Zakir Hussain having obtained possession from Moosa Khan for in that case there would be no question of Sar Baluch handing over possession again.

8. As against this the evidence for Qamruddin consisted in the main of the execution of the sale deed and its registration, events which are hardly capable of dispute, and the evidence of Sar Baluch himself who stated that he had given possession to Qamruddin. The learned Magistrate has nevertheless held that possession was with Zakir Hussain and or Jadoon and mainly be would appear to have been influenced by the fact that he entertained a very low opinion of the character of Sar Baluch by reason of the fact that be made agreements with different parties and that he denied the genuineness of the agreements made between Moosa and Zakir Hussain. In this conclusion, which the learned Magistrate expressed in strong terms calling Sar Baluch a cheat, he might well have been justified but it seems to me that, even so, the inescapable fact remained that Sar Baluch had deposed that he had given possession to Qamruddin and that this was borne out by the sale deed which contains a recital of the transfer of the possession.

9. I revert to an examination of the police report which is after all the foundation of the jurisdiction of the learned Magistrate in these proceedings. It will have been noticed that the entire report speaks of the history of the land in question and really recites facts which go to title rather than possession. Even however if it did talk about possession it is to be remembered that it does not suffice for proceedings under section 145 of the Criminal Procedure Code that there should be a dispute but it is necessary also that there should be "a dispute likely to cause a breach of the peace". (Section 145, Criminal Procedure Code). It has been held that it means not merely that there should be a dispute which is in itself likely to, cause a breach of the peace but that there is in fact a likelihood of the breach of the peace. But, even upon the simple basis that there exists such a dispute as is likely to cause a breach of the peace. I am unable to find that the report of the Police contained any material which would justify the satisfaction necessary under section 145, Criminal Procedure Code before proceedings under that section can commence. The only reference in the entire report to such a matter is in the penultimate paragraph which states merely that the cause of tension between the parties has been increasing and also refers to a report of proceedings under section 107/117, Criminal Procedure Code. Nothing whatever has been stated as to any concrete event from which it can be deduced that there was any likely-hood of the breach of peace. It is to be remembered that after all it is not all disputes over the possession of immovable property which are likely to cause such a breach and, in my view it is necessary that the report should have made a concrete allegation of some kind and that the learned Magistrate should in turn have upon good material, felt satisfied that there was such a danger. The report was submitted upon the 17th April 1970 and there appears only a short order of the learned Magistrate upon the 22nd May which is "call the parties". I am entirely unable to see therefore how the learned Magistrate had any jurisdiction to commence proceedings under section 145, Criminal Procedure Code at all, and upon that ground by itself I think I must set aside the entire proceedings culminating in the order complained of.

10. Nor does it appear anywhere in the evidence that during the period of more than two years that the case was pending before the learned Magistrate did any thing occur to justify an apprehension that there would be a breach of the peace. Even if the learned Magistrate was right in commencing the proceedings clearly, if, at any subsequent date, he came to the conclusion that there was no such danger he should have cancelled his order and terminated the proceedings.

11. I enquired from the learned counsel for the parties but was informed that there had not been during the proceedings any order under the second proviso of section 145 (4) attaching the property. Later, however, one of the learned counsel who actually appeared before the Magistrate said that there had been an order of attachment and that the land just now was in the possession of the Police. They were however quite unable to produce before me any order and I have not myself been able to find from the original record any such. Clearly if the police had taken possession of the property in question there would have been a Mushirnama or some other document recording the fact. Assuming, however, that the learned Magistrate had jurisdiction it seems to me, I have earlier indicated, that he did not really determine the question of possession but at most an entitlement to possession. He started a discussion of the case with x sub stantially. Correct enunciation of the principle by stating :‑

"The point for consideration is as to who was in possession of property in question at the time of challan report, within the period of two months. This Court has no jurisdiction to go into the details of ownership entitled, and the jurisdiction of this Court is to find out as to who was in possession of the immovable property within the period of two months and whether there is any apprehension of breach of peace."

When however he came to the actual discussion of evidence he seems to have lost sight of the principle and have confused an actual possession with an entitlement to possession. Incidentally I might also point out that the passage I have quoted does not quite accurately state the legal position. The question is not who was in possession of the property at the time of the report or within two months before that but merely as to who was in possession at the time of the order of the learned Magistrate passed under section 145 (1) which provided that if a party has been dispossessed within two months before that date then that party is to be treated as if it was in possession on that date. This distinction is however not material in the present case.

12. Having come to the conclusion that the proceedings were entirely unjustified and that, in any event, the order is not supportable upon the evidence. I set aside the order and the question therefore arises as to whether it is necessary to make any order as to possession. There is an ad interim order of this Court in which, on its being claimed by Qamruddin that he was in possession, the status quo was ordered to be maintained. Clearly therefore if the statement be correct that he was in possession on that date he must be allowed to remain in possession. But that is after all merely the statement of Qamruddin and the normal consequence of my passing the order which I propose to would be to make no order as to possession at all since the very basis of the jurisdiction of passing such an order does not exist. In the event however that there was an order of attachment by the Magistrate then clearly it would be my duty to give possession to such person as the Police took possession from but it is not at all established that such is the case here.

13. I therefore set aside the order of the learned Magistrate. It seems to me in view of what I have found above that the possession at the time in question must clearly have been that of Qamruddin and that therefore by reason of the ad interim order of this Court he must be still in possession. In the unlikely event however that an order of attachment was passed it again seems to be perfectly clear that possession must have been taken from Qamruddin. I therefore order that if Qamruddin has been dispossessed by any order of the Magistrate or an action of the police possession shall be restored to him forthwith.

Petition accepted.