1949 PLP 397 (PLD)

It would not be necessary to multiply the authorities on this subject. The ratio decidendi of the cases mentioned above is that the dispute should be between parties as to their claims to actual possession of the property. Not a single case was quoted where proceedings under section 145 were started in view of the apprehended breach of peace between two rival heirs of the owner, but preventive action was taken only where the dispute related to the actual possession of one or the other. The argument of the learned counsel for the respondents was that the existence of a 'dispute' relating to some 'land as defined in section 145 was sufficient to confer jurisdiction upon the Magistrate to proceed under section

145. It was emphasized that to give initial jurisdiction, it was not necessary that the parties should have a 'dispute' regarding actual possession and the question of the determination of actual possession arose only when the Magistrate had entered upon the enquiry. This argument is not wholly without force because in sub section (1) the word dispute' alone is mentioned irrespective of the nature thereof. This interpretation might sometimes lead to absurd results. Supposing A were in actual possession of property and his neighbours or other relations might be quarrelling among themselves to cover it. According to the above interpretation, it would be open to the Magistrate to take action under section 145 and in case of emergency to attach in property and this, while the real owner and the person actually the possession knew nothing about it. The word 'dispute' in subsection (1) cannot be considered without relation to the nature and the scope of the enquiry to be conducted by the Magistrate. My own view is that in .the present context 'dispute' means, dispute as to the actual possession of the property between two or more persons involv ing likelihood of a breach of the peace. There is, however, no decided case directly dealing with this point. In view of the importance of the question and the frequency with which it may arise, it is necessary to have an authoritative pronouncement on the point. If the above view be correct the proceedings under section 145 in this case were a little premature. The real owner was still living though lying unconscious. None of the present parties had come in actual possession of any part of the property and according to the police reports and other information the dispute was likely to assume serious proportions on the death of Sir Allah Bakhsh Tiwana without lineal descendants. I am quite in sympathy with the solicitude of the district authorities to take prompt action to prevent a breach of the peace between the next heirs who appear to wield considerable influence in the locality and who are actively supported by their strong partisans. Whatever other action might have been open under the law, section 145 could not be utilized on the 11th of June 1948. to attach the property simply because on the expected death of the owner, the parties might come to a clash. If the Magistrate had no jurisdiction then to proceed under section 145, Criminal Procedure Code, all the steps taken by him with regard to the property would be wholly without jurisdiction. The attachment of movable property like horses and other live stock is not directly covered by section 145, Criminal Procedure Code. This section occurs in Chapter XII of the Criminal Procedure Code headed " Disputes as to Immovable Property ". The dispute as to movable property would be outside the scope of this Chapter. The learned counsel for the respondents drew my attention to 14 Indian Cases 318 and A I R 1933 Lah.

409. In the former, a forest was attached with an elephant in it and it was held that the elephant should be delivered only to the person in whose favour the final order was passed under section 145 of the Criminal Procedure Code. It was pointed out that the immovable property of the forest was under attachment and it was conceded that the elephant was not removed from the forest at the time of the attachment. The owner or the person in possession of the forest in which the pit was dug was to be considered entitled to the ownership or possession of the elephant and prima facie the person, if any, in whose favour the order under section 145 of the Criminal Procedure Code would be passed would also be entitled to the possession of the elephant, unless there were special circumstances in the case to show that he was not entitled to its possession. In the letters, decided by Bhide, J., it was laid down that movable property as such does not ordinarily come within the purview of section 145, unless it is in the shape of crops or other produce of land, or rents and profits of the property in dispute. But where the dispute relates not to the mere building or structure itself but also to the valuable property inside and there is a state of emergency the Magistrate can order the police to take charge till decision of the case of the movables also long with the building which contains them. 14 Indian Cases 318 was approved and the learned judge remarked this seems to me to be the only reasonable view to take in the circumstances. It would be, I think, absurd to hold that when a Magistrate takes possession of immovable property in case of emergency he should first remove the movable property there from or hand it over to one or the other of the parties until the question of possession of the immovable property is decided in the proceedings. Prima facie, the movable property in such cases belongs to the person entitled to the possession of the immovable property in dispute." In the above cases, the movable property was not separately attached. It was covered by the order of attachment of the property in which the movable property was contained. It would certainly be not desirable in the case of a dispute of a building or other property that the movable property lying therein or found thereon should be removed before attachment under section 145 could be effected; the attachment of the property would ipso facto include all movables and other articles found upon it. The difficulty in this case however arises for another reason. The order of attachment of the property of Sir Allah Bakhsh Tiwana was made on the 11th of June 1948, and this order should have normally covered all the movable property that was there at the time it was made. In the present case, however, a separate application was presented by Mst. Bhag Bhari to take action in respect of certain animals on the estate of Nawab Sir Allah Bakhsh Tiwana. This was separately decided by the order of 3rd of September 1948, and a separate preliminary order was promulgated in respect thereto. This could not fall under section 145, Criminal Procedure Code. I might, however, point out that if the original order of 11th of June 1948, be taken to have been passed with jurisdiction and the estate of Sir Allah Bakhsh was validly attached, the movable property lying on the estate would follow the way of the immovable property. Elaborate arguments were then addressed by the learned counsel for the respondents to the effect that if there was any defect in the original preliminary order on account of the grounds on which the Magistrate had felt satisfied, being not mentioned therein, it would be cured by section 537 of the Criminal Procedure Code. A I R 1933 All. 264 (F B) ; A I R 1939 Lah. 233; A I R 33 Cal. 352 (F B) and several others were cited in this connection. It is not necessary to discuss these rulings in detail. Suffice it to say that if the original order was with jurisdiction and the Magistrate was empowered to proceed under section 145, Criminal Procedure Code, some irregularity or defect would not be allowed to oust the jurisdiction of the Magistrate in taking action under section 145 and, the irregularity, etc., would be cured by section 537 of the Criminal Procedure Code if it did not result in prejudice to any of the parties. In this case the parties were fully aware of the nature of the dispute and all that what they were required to do by the Magistrate and no prejudice whatsoever has been caused to them. All this, however, would be subject to the initial order being with jurisdiction. As a last resort the learned counsel for the respondents contended that if the, Magistrate had no jurisdiction during the lifetime of Sir Allah Bakhsh on the 11th of June 1948, he acquired it on his death. This argument is open to several objections. Firstly, the dispute which the parties were called upon to answer should have existed at the time when the preliminary order was made and the enquiry under sub section (4) as to actual possession, was also to be decided with reference to the date of the order. Secondly, the property had been placed under attachment before the death of Sir Allah Bakhsh and no fresh dispute as to actual possession arose or could arise under the circumstances of the case. This contention, therefore, may be ruled out of consideration. I have indicated above the importance of the question involved in this case and have also stated that there was no decided case directly dealing with the point in issue. I would, therefore, submit this case to my Lord the Chief Justice for decision by a larger Bench with particular reference to the following questions :‑ (1) Whether the word "dispute" in subsection (1). section 145, Criminal Procedure Code means a dispute without reference to the claims of the contending parties as to their actual possession? (2) Whether section 145 Criminal Procedure Code could be invoked in cases where the contending parties are not ill actual possession at the time of the preliminary order but have bona fide rights to succeed to the property and there is a serious danger of a breach of the peace if action under section 145 were not take"? (3) Whether a separate order for the attachment of movable on the land could be passed under section 145? M. Salim and Yaqub Ali for Petitioner. Manzur Qadir and B. Z. Kaikaus for Respondent. MUHAMMAD MUNIR, J.‑Criminal Revision No. 401 and Criminal Miscellaneous No. 606 of 1948 are petitions arising out of proceedings taken by the Additional District Magistrate, Sargodha, under section 145 of the Code of Criminal Procedure in respect of the property of the late Nawab Sir Allah Bakhsh Khan Tiwana. Nawab Sir Allah Bakhsh who was one of the biggest landowners of this province died on 15th June 1948. He left no issue and the claimants to his estate are his sister, Mst. Bhag Bhari, wife of Brigadier Gul Sher Khan on the one hand and Malik Fateh Muhammad Khan Tiwana, Malik Abdul Ali Khan Tiwana and Malik Muhammad Ali Khan Tiwana, on the other. The deceased is also said to have left a widow who had deserted him during his lifetime and gone over to live with one Manak Busel in the Gujrat District. It is, however, not known whether she was or was not divorced by Sir Allah Bakhsh. On 11th June 1948, while Sir Allah Bakhsh was still alive a report was submitted by the police to the District Magistrate of Sargodha con cerning the situation that might arise by the death of Sir Allah Bakhsh. The report stated that Sir Allah Bakhsh was lying in a state of coma, that his death was imminent, that he had left a will by which he purported to divide his property among his sister, Mst. Bhag Bhari, his niece Mst. Fateh Bibi and his collaterals, that the management of his properties was in the hands of his agent Sayyed Chanan Pir Shah, while the management of his house, hold was in the hands of Mst. Bhag Bhari, that Malik Fateh Muhammad Khan Tiwana and his two brothers who are the collaterals of Sir Allah Bakhsh were laying claims to Sir Allah Bakhsh's property, that one Gaman Utra had attempted the life of Malik Fateh Muhammad Khan Tiwana a few days before, that the supporters of Mst. Bhag Bhari had gathered in Khawajabad where Sir Allah Bakhsh was lying on his death bed, that Malik Fateh Muhammad Khan Tiwana and his brothers also had collected 20‑30 men from different villages with a view to obtaining forcible possession of Sir Allah Bakhsh's estate and dispossessing Mst. Bhag Bhari from the management of the household, that a clash was inevitable between the two rival claimants and that proceedings under section 145 of the Code of Criminal Procedure be taken immediately with a view to avoiding a breach of the peace. The District Magistrate directed the Additional District Magistrate to go to the spot and to take all necessary action to preserve order. Accordingly the Additional District Magistrate went to Khawajabad the same day and recorded the following order on the police report :‑ "From the above police report, I am satisfied that a dispute likely to cause a breach of peace exists concerning the land owned by Nawab Allah Bakhsh Tiwana within the local limits of my jurisdiction I hereby make an order in writing that the parties to dispute whose names are given above (I Party: Mst. Bhag Bhari, wife of Brigadier Gul Sher Khan Noon). (II Party :

1. Malik‑Fateh Muhammad Khan Tiwana.

2. Malik Abdul Ali Tiwana, and

3. Malik Muhammad Ali Tiwana) shall attend my Court on 15 June 1948 and put in written state ment of their respective claims of the actual possession of the subject of dispute. It is necessary under section 145, Criminal Procedure Code to serve a copy of the order on the parties. I have read it over to them and have taken their signature in token of service. I have directed the police to have a list of the property in dispute, D. S. P. undertakes to furnish it to‑morrow. When this list is furnished a copy of the order will be published as required by section 145, subsection (1), Criminal Procedure Code." By another order of the same date the Additional District Magis trate considering it to be a case of emergency ordered the subject of dispute to be attached and appointed Sayed Chanan Pir, the agent of Nawab Sir Allah Bakhsh, as the Manager and Receiver of the property in dispute. The order further stated that as the list of the disputed property was not available final orders of attachment would be passed when the list was supplied. Sir Allah Bakhsh died on the 15th June 1948 and list of the property was furnished on the 18th June 1948. Thereupon the Magistrate attached the property and requested the District Magistrate to nominate a suitable person for appointment as Manager and Receiver. The list of property included landed property and movables like grain, wheat and cash but not cattle s. Malik Fateh Muhammad Tiwana objected to the attachment of movable property on the ground that it could not be attached under section 145 of the Code of Criminal Procedure but the objection was dismissed by order dated the 21st July 1948. As the cattle on the estate had not been attached by the order dated the 18th June 1948, Mst. Bhag Bhari made a fresh application under section 145 of the Code of Criminal Procedure praying that proceedings under that section be taken in respect of the cattle. This application was allowed and by order dated the 3rd September 1948 the cattle on the estate were also put under attachment. Aggrieved by these proceedings, Malik Fateh Muhammad Khan Tiwana applied for their revision specifically asking for the setting aside of the orders dated the 21st July 1948 and 3rd September 1948. Sub sequently another petition, Criminal Miscellaneous No. 606 of 1948, was put in questioning the legality of the proceedings under section 145 of the Code of Criminal Procedure on the ground that in the admitted circumstances of the case no order under that section could be made. These petitions came up for hearing before Muhammad Sharif, J. who by his order dated the 13th December 1948 referred them for decision by a Division Bench with particular reference to the following three questions :‑ (1) Whether the word "dispute" in subsection (1), section 145 Criminal Procedure Code, means a dispute without reference to the claims of the contending parties as to their actual possession? (2) Whether section 145, Criminal Procedure Code could be invoked in cases where the contending parties are not in actual possession. at the time of the preliminary order but have bona fide rights to succeed to the property and there is a serious danger of a breach of the peace if actions under section 145, were not taken? (3) Whether a separate order for the attachment of movables on the land could be passed under section 145? The true import of these question will be apparent on reference to the language of section 145 which is as follows :‑ " Whenever a District Magistrate, Sub‑Divisional Magistrate or Magistrate of 1st Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists Concerning any land Or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." The point made by Mr. Saleem before Muhammad Sharif, J., and here is that the dispute on the existence of which the Magistrate can start proceeding under the section must relate to the fact of actual possession of the subject of dispute because after the preliminary order is made the enquiry is required by the section to be limited to the "respective claims as respects the fact of actual possession of the subject of dispute." According to this contention, in order to give jurisdiction to a Magistrate to initiate the proceedings under this section it is not sufficient to show that there is a dispute, that the dispute relates to any land or water or the boundaries thereof and that the dispute is likely to cause a breach of the peace, but it must further be alleged that the dispute relates to the fact of actual possession of the subject of dispute. To illustrate his contention be has given several examples where accord ing to him the essential conditions giving jurisdiction to the Magistrate exist but the order made leads to an absured or ridiculous position. For instance, be argues if two groups of students of the Government College at Lahore are sharply divided on, and are hotly debating the question whether the College was built in 1875 or 1857 or whether it was built by the Sikhs or by the British, or whether the style of its architecture is Gothic or Classical, it can be said that a dispute likely to cause a breach of the peace exists concerning the Government College and the Magistrate after recording the preliminary order would be justified in attaching the College and in requiring both the groups of students to put in written statements of their respective claims as regards the fact of actual possession of the College. To avoid this ridiculous result, he suggests that the section must be so read as to make the word "dispute" refer to the fact of actual possession. He would, therefore, read or insert the words "the fact of actual possession of" between the word "concerning" and the word "any" in the section in order to make it logical and consistent. If in the illustration given, Mr. Saleem's premise is correct, the conclusion, however, ridiculous, must also be held to be correct. I have, however, considerable difficulty in accepting the correctness of the aforesaid premise. In the first place an argument about the date or style of a building is not a dispute. Secondly, it cannot rightly be described to be a dispute concerning the building, though it may be correct to describe it as concerning the date or style of the building and thirdly, such an argument even if it was to be called a dispute, is never likely to cause a breach of the peace. The conditions requisite for the initiation of the proceedings under the section are, therefore, missing and no order attaching the College or requiring the parties to put in written statements of their respective claims as regards the fact of actual possession can be made. The object of the section is the prevention of disputes as to immovable property likely to cause a breach of the peace and the works used "a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof" are wide enough to cover all kinds of disputes not only disputes as to the fact of possession but also disputes as to the right to possess of the right to own or use immovable property if they are likely to cause a breach of the peace. Though the Magistrate initiating the proceedings on the existence of such disputes is required to make an inquiry into the fact of possession and to make certain orders according to his finding on this question, there is no reason to limit the words descriptive of the dispute which give jurisdiction to the Magistrate to initiate the proceedings to disputes relating only to the fact of possession, as the final order does not depend on the Magistrates finding one of the parties to be in possession. If the Magistrate finds after recording the evidence that one of the parties is proved to be in posses sion on the date of the preliminary order he must confirm that party's possession by declaring him to be entitled to possession until evicted therefrom in due course of law and forbidding all disturbances of such possession until such eviction. If the finds that the party in possession on the date of the preliminary order had obtained forcible and wrongful possession from the other party within two‑ months next before the date of that order, he must restore possession to the latter leaving the former to obtain possession in due course of law. if, however, the Magistrate finds that neither of the parties was in posses sion on the date of the preliminary order or if he is unable to satisfy himself as to which of them was then in such possession, he may proceed under section 146 and attach the property until a competent Court has determined the rights of the parties or of the person entitled to possession thereof. It is thus apparent that the making of the final order seeking to put an end to an apprehension of a breach of the peace is not dependent upon a party to the dispute establishing his possession Even if neither party is found in possession and apprehension of a breach of the peace still exists; the Magistrate cannot discharge the proceedings on the finding that neither party's possession is proved, and he can still proceed to make an order under section 146 attaching the property until a Civil Court has determined the rights of the parties or of the persons entitled to possession thereof. Such order can also be made if on the evidence produce the Magistrate is unable to satisfy himself as to which of the parties was in possession or where the evidence as to possession is unreliable or conflicting or where both parties have been exercising acts of possession in respect of the subject‑matter of the dispute. Of course, if neither party can establish his possession and apprehension of the breach of the peace has disappeared, the Magistrate may discharge the proceedings. There is, therefore, no warrant for restricting the plain meaning of the words "a dispute likely to cause a breach of the peace exists concerning any land or water or boundaries thereof" and to limit their application only to disputes as regards the fact of possession as distinguished from disputes, relating to the right to possess. Disputes relating to the right to possess are obviously within the meaning of the section because subsection (4) of the section expressly directs that the Magistrate shall peruse the statements put in "without reference to the merits of the claims‑of any of such parties to a right to possess the subject of dispute" and these words would have been wholly unnecessary if the dispute giving rise to the Magistrate's' jurisdiction had only related to the fact of possession and not included a dispute relating to the right to possess. The plain intention of the section is that though the dispute may relate to or arise out of the right to possess, the Magistrate in making the final order must only look to the fact of possession and not to the right to possess and that possession, if proved, has to be protected and‑ the party claiming the right to possession must go to a competent Civil Court and not take the law in his own hands by attempting forcibly to dispossess the party in possession, however defective his title. The same result follows from the proviso to subsection (4) which says that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at the date of such order. If Mr. Saleem's argument is correct there would be no occasion for the application of this proviso because ex hypothesi where a party in possession has actually been dispossessed by the other party, there has never been a dispute as respects the fact of actual possession. Further, on this construction the section will be applicable to only a few and comparatively unimportant kinds of disputes as to immovable property and the proceedings which are essentially preventive would reduce themselves to a sort of quasi civil proceedings in which the only function of the Magistrate would be to take evidence as to the acts of possession exercised by either party and then to declare that on the facts proved a particular party should be held to be in possession. The common type of dispute here each party is attempting to take possession of the land and there is grave danger of a breach of the peace would be wholly outside the purview of the section. If a person lies leaving an infant as heir to his estate and contestants to the custody of the infant's person and property attempt to obtain possession by having recourse to force, the section would not be applicable according to Mr. Saleem's contention because there is, in such a case, no dispute as to the fact of actual possession. To revert to the present case, if on the death of Sir Allah Bakhsh the claimants to his estate had attempted to take forcible possession, the section would not have been appli cable because neither party could be said to be in possession on the death of Sir Allah Bakhsh. To my mind it would be not only unduly straining the language of the section but also inserting in it words that do not exist, if the section were construed to mean that only such disputes as arise out of the fact of possession are within its purview, The section occurs in Part 4 of the Code of Criminal Procedure the object of which is the prevention of offences or breaches of the peace. The object of the several provisions occurring m this part of the Code is to detail the procedure in different cases where a breach of the peace is apprehended. In this view all disputes whether they arise out of actual possession or attempted possession or out of use of immovable property are covered by the section if they are likely to cause a breach of the peace. In my opinion, therefore, if the facts stated by the police in their report of 11th June were true, action under section 145, Criminal Pro cedure Code, could be taken by the Magistrate as there was a dispute relating to the right to possess the property of Nawab Sir Allah Bakhsh which was likely to cause a breach of the peace. It is wholly immaterial that Nawab Sir Allah Bakhsh was then alive. If the dispute was inevit able on his death, it could also arise a few days earlier in anticipation of his death. I would, therefore, answer the first and the second questions referred by Muhammad Sharif, J. in the affirmative. The position in regard to the third question is perfectly simple. The property in respect of which proceedings were taken was admittedly movable property, namely, horses and cattle. No proceedings under section 145 can be taken unless the dispute concern land or water or the boundaries thereof, and live‑stock is admittedly neither land nor water. The result, therefore, is that the order of 3rd September by which horses and cattle were attached and the parties were required to put in their written statement as respects the fact of actual possession of live‑stock is set aside. We do not decide the question whether the original order of attachment of land had the effect of attaching the cattle as well. The point is not before us and we express no opinion about it. The other proceedings under section 145 together with the order of attachment of immovable property, again, wheat and cash are valid and will continue. A. Muhammad Jan, J.‑I agree. A. H. Reference answered.