1987 PLP 622 (SCMR)

SAAD SAOOD JAN, J.‑‑This is a petition for special leave to appeal from the order, dated 6‑12‑1986 of the Lahore High Court, Multan Bench, dismissing the constitutional petition of the petitioners wherein they had challenged the order of the Sessions Judge, Leiah which affirmed the order of a Magistrate under section 145 of the Code of Criminal Procedure.

2. The dispute between the parties relates to a piece of land measuring 120 Kanals situate in Chak No.279/T.D.A. of District Leiah. It appears that Noor Din, predecessor‑in‑interest of petitioner Nos.1 and 2, and Allah Yar, petitioner No. 3 had jointly purchased in an auction about two hundred Kanals of land including the land in dispute .n the said Chak. By an oral transaction they sold the land in dispute :o Bashir.Ahmad, respondent No.3, for a sum of Rs.46,500 and put him in possession. Perhaps for the reason that the sale was not evidenced by any document Bashir Ahmad filed a Civil suit on 3‑4‑1973 to seek a declaration that he was the owner and in possession of the land in dispute. On the next day, that is, 4‑4‑1973, Noor Din and Allah Yar appeared in Court and filed a written statement in which they conceded the claim of Bashir Ahmad. Accordingly, on the same day the Civil Court decreed the suit. About ten years later, that is, on 23‑2‑1983, Noor Din and Allah Yar filed an application under section 12 (2) of the Code of Civil Procedure challenging the decree of 4‑4‑1973 on the ground that it had been obtained fraudulently. Noor Din died during the pendency of the application and was substituted by petitioners Nos.1 and

2. The application was resisted by Bashir Ahmad who in his defence apart from other evidence produced the lawyers who had drafted the written statement at the instance of Noor Muhammad and Allah Yar. After considering the evidence led before him the Court dismissed the application on 25‑6‑1974 and burdened the petitioners with special costs of Rs.2,

000. The petitioners preferred a revision petition before the District Judge which is still pending. 3.???????? On 28‑5‑1984, that is, while the application of Noor Muhammad and Allah Yar under section 12 (2), ibid., was sub judice, Bashir Ahmad filed an application under section 145 of the Code of Criminal Procedure before the local Magistrate alleging that the petitioners with the help of a number of armed persons had forcibly dispossessed him from the land in dispute and that there was imminent danger of breach of peace. The learned Magistrate held an inquiry and heard evidence of both parties. He came to the conclusion that the petitioners had forcibly taken away the possession of the land in dispute. Accordingly, by an order, dated 26‑7‑1984, he directed the local police to restore the possession of the land to Bashir Ahmad. The petitioners challenged the order of the learned Magistrate in revision before the Sessions Judge. After re‑appraising the evidence the learned Sessions Judge affirmed the finding of the learned Magistrate that the petitioners had forcibly evicted Bashir Ahmad who was getting the land cultivated through his nephew Muhammad Aslam. Accordingly, he dismissed the revision petition.

4. The petitioners invoked the constitutional jurisdiction of the High Court to call in question the legality of the orders of the learned Sessions Judge and the Magistrate. By an order, dated 6‑12‑1986 the High Court declined to interfere with their orders.

5. In support of this petition it is contended that on the day when Bashir Ahmad filed the application under section 145 of the Code of Criminal Procedure. proceedings . relating to the land in dispute were already pending in a civil Court; in the circumstances the learned Magistrate did not have the jurisdiction to entertain the said application. There is little force in this contention. Admittedly, the learned Civil Judge who was seized of the case had not passed any interim order with regard to the land in dispute. That being so, as held in Abdul Aziz and others v. Mian Rafiuddin 1983 S. C. M.R 928, mere institution of civil action did not oust Magistrate's jurisdiction to proceed under section 145 of the Code of Criminal Procedure. It is then contended that while admitting the revision petition from the order of the Civil Judge the learned District Judge had directed the maintenance of status quo and that this order was in force when the learned Magistrate directed the restoration of possession of the land in dispute to Bashir Ahmad. It may be mentioned that a copy of the said order, if it at all existed, has not been placed on the record. It does not appear that it was shown to the learned Magistrate, Sessions Judge or the High Court.

6. For the reasons stated above, we find no merit in this petition which is hereby dismissed. M.I./G‑6/S?????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.