SHAH MUHAMMAD Versus STATE

ORDER

1. This revision is directed against order dated 7th February 1981 passed by the Sessions Judge, Rawalakote against order dated 5 th June, 1980 passed by the Magistrate Ist Class Kahutta. By the impugned order of the Magistrate, the land in dispute was attached against which a revision was filed in the Court of Sessions Judge, Rawalakote, which was dismissed by the learned Sessions Judge. For the land in dispute one Mst. Shahmali has a decree in her favour and that apparently may be of joint possession.

2. It was reported by the police that possession of the land in dispute was delivered to Mst. Shahmali, the decree-holder by the Patwari and afterwards the possession of the same was re-taken by the petitioners. And so proceedings under sections 107/145 and 150, Cr. P. C. were taken by the police and two of the parties i.e. the petitioners and Shah Muhammad and his associates were brought before the Court under the above-noted sections and it was prayed that during the pendency of the proceedings, the land in dispute should be attached as there was every likelihood of the breach of peace between the parties over the land in dispute.

3. The counsel before the Court were heard.

4. A Civil Appeal No. 6 of 27th January 1980 filed by the petitioner before the Court of District Judge against the decree dated 9th January 1980 passed by the Court of Sub-Judge, Kahutta is pending there. This is a decree for possession and in the circumstances, it may be termed for a joint possession. For a joint possession no physical possession of the land decreed is possible unless partitioned in due course of law.

5. The patwari proceeded in delivering the possession of the land in dispute to the decree-holder against the provisions of law.

6. The appeal between the parties is still pending and if finally, decree is confirmed in favour of Mst. Shahmali decree-holder, she would be entitled to the joint possession of the land in dispute through execution of proceedings which would be pressed into service within the time pres cribed. Presently it is evident from the very application of the police that the petitioners are in possession of the land in dispute. The petitioners say that no possession was passed on to Mst. Shahmali. Mst. Shahmali is not a party to the proceedings under section 145, Cr. P. C. And so in the above circumstances, the impugned order passed by the Court of Magistrate and confirmed by the Sessions Judge does not appear to have been properly passed. There was no need of passing an order of attachment especially when the petitioners were shown in possession of the land in dispute by the police itself.

7. Therefore, this revision petition is accepted and the order of attach ment of the property in dispute is hereby set aside.

8. Revision allowed,