P L D 1965 (W (PLP)

3. The parties were given an opportunity in accordance with section 145(4), Cr. P. Code to produce evidence in support of their respective claims.

4. On a careful consideration of the evidence the learned Magistrate held that Mst. Sharfia Begum was in possession of the house in her own right, as the house in dispute was given to her in lieu of her dower and that Amir Ali and others wanted to dispossess her, but their possession was held not to be proved within t No months of the date of the complaint and as such both the parties were left to establish their title to the house in dispute in a competent (Civil) Court.

5. Feeling aggrieved against the order of S. Matiullah Shah, Magistrate 1st Class, Peshawar, dated the 27th of May 1964 Mirza Nisar Ali and two others preferred a revision petition in the Court of Sessions and the learned Additional Sessions Judge, Peshawar, who disposed of the revision application after carefully reviewing the evidence, oral as well as documentary, held that it was not proved that Mirza Nisar Ali, Muhammad Mehdi and Amir Ali were in actual possession of the house in dispute to the exclusion of Mst. Sharfia Begum within two months of 5-11-1963, the date of the preliminary order. Accordingly the learned Additional Sessions Judge declined to refer the case to the High Court with the recommendation to set aside or modify the order passed by the Magistrate.

6. As against the order of the learned Additional Sessions Judge, Peshawar dated the 29th of September 1964, Amir Ali and others have come up in revision under section 439, Cr. P. Code to this Court.

7. Learned counsel for the petitioners vehemently contended that the order was bad on twin-ground: (1) That his clients were proved to be in possession of the house in dispute within two months of the date of the preliminary order; and (2), in case it was found that they failed to prove that they were in possession within two months of the date of the preliminary order the learned Magistrate should have attached the house under section 146, Cr. P. Code.

8. Taking up the last point first, I am inclined to take the view that since none of the parties to the proceedings under section 145, Cr. P. C. was able to satisfy the learned Magistrate as to his possession of the house in dispute and since a third party was found to be in possession, it was not necessary, in my opinion, to have attached the house for, the attachment if made would have resulted in considerable hardship to the lady who was found in possession of the house in her own right. The word `parties' occurring in section 146, Cr. P. Code refers to the "parties concerned in the dispute" in subsection (1) of section

145. A Magistrate may attach a property if he finds that none of the parties was in possession within two months of the date of the preliminary order. He cannot, however, do so if he finds that a third person is in possession of the property.

9. Taking up the first point, I find that the evidence produced by the petitioners does not go to prove that they or any one of them was in possession of the disputed house within two months of the date of the preliminary order and that they were dispossessed of the house wrongfully. The petitioners in order to prove that they were in possession of the disputed house within two months of the date of the preliminary order relied on documentary as well as oral evidence. The documentary evidence consists of the report (Exh. P. B.) which one of the petitioners, namely; Muhammad Mehdi lodged with the police on 3-10-1963 and the rent note (Exh. P. X.) purporting to have been executed by one Kabul Khan in favour of Mirza Amir Ali and Muhammad Mehdi petitioners. As a result of the lodging of the report by Muhammad Mehdi the house in dispute was visited by Sub Inspector Abdul Hakim Khan, but he did not enter the house because he found that ladies were present inside. He challaned both the parties under section 107/151, Cr. P. Code to be bound down to keep the peace. The evidence about the possession of the disputed house by Kabul Than under a rent note is not con vincing. He is not a man of substance. We are called upon to believe that he took the house at a monthly rent of Rs. 65 for four months only and then vacated it. The rent note appears to have been filled in by Mirza Nisar Ali who is also the marginal, witness. It may be stated here that Mirza Nisar Ali is the' maternal uncle of Mirza Amir Ali and Muhammad Mehdi. The rent note bears the thumb-mark of Kabul Khan. It was not entered in any register and as such the Courts below very properly ignored this piece of the evidence considering it to be unreliable. Kabul Khan is a fruit seller. He admitted that he pays annas twelve as rent to the Municipal Committee per day for his shop which is in Chowk Yadgar, Peshawar City. It appears that Kabul Khan has no regular shop but has rented a thela and as such his statement that he took the house in dispute on a rent of Rs. 65 per month was correctly disbelieved by the Courts below. He was unable to give the names of persons residing in the locality and failed to produce any receipt for payment of rent. I think he was rightly disbelieved. In addition to it the petitioners examined Mukhtiar Ahmad, Water Works Moharrir and Khadim Shah, Clerk Excise and Taxation Department, Peshawar to prove that water supply charges of the house in dispute were paid by Mirza Nisar Ali and that in the Assessment Register at serial No. 271 the house in question was entered in the name of Mirza Zulfiqar Ali and possession is shown to be that of Mirza Amir Ali, son of Zulfiqar Ali. The Water Works Moharrir admitted that the bills are issued in the name of the persons to whom the connection has been given and even if the house is let out on rent and is occupied by any other person, the demand is continued to be made from the owner or the person in whose name the connection for supply of water was given or sanctioned. It is clear to me from the statement of the clerk of the Excise and Taxation Department that Amir Ali was residing in the house in dispute at the time of the last survey that was carried out somewhere during July 1, 1963 to October 1963. The witness was, however, unable to say if the house was in the actual occupation of any person at the time of the survey or was lying vacant.

10. The evidence of Muhammad Mehdi and Mirza Amir Ali is interested, Muhammad Mehdi did not strike me as a truthful witness, for he deliberately tried to suppress the truth when be stated that he was not aware if Mirza Amir Ali had given a portion of the house in dispute to Mst. Sharfia Begum in lieu of her dower.

11. Mirza Amir Ali is the husband of Mst. Sharfia Begum. It is admitted that he lived with her in this very house till the relations between the husband and the wife became strained. It is also on the record that Mst. Sharfia Begum was married to Amir Ali in December 1957, and she resided with him in the house in dispute. Amir Ali transferred one-halt share out of the disputed house in favour of Mst. Sharfia Begum in lieu of her dower and the deed was registered on 2-12-1957. In the circumstances it is unbelievable that Mst. Sharfia Begum left the house and started living with her parents when the relations with her husband became strained. The report (copy Exh. DX/1), which Amir Ali made to the Police on the 16th of August 1958, is not conclusive. evidence that the lady left the house in question. Mirza Amir Ali is a law graduate and appears to have contrived all this to enable him to recover possession of the house without having recourse to civil Court. The fact that Mirza Amir Ali when he remarried in 1961 took a house on rent in Nishtar Abad, started living there, along with his brother Muhammad Mehdi, his maternal uncle Mirza Nisar Ali and his mother confirms the belief in my mind that the disputed house was in actual possession of his first wife Mst. Sharfia Begum and he was, therefore, compelled to live in a rented house in Nishtar Abad.

12. The evidence produced to prove that in September 1963, the petitioners were in possession of the house in dispute and it was shown to Fazal Shah, Inspector Police and Abdur Rashid, an employee of the Government Transport Service, Peshawar, is not convincing. Abdul Rashid admitted that Muhammad Mehdi petitioner works with him in the Government Transport Service. The evidence of the Inspector Police and Abdur Rashid was not relied on by the Courts below.

13. The evidence produced by the opposite-party consists of the statements of Faqir Hussain, Hussain Ali and Nazir Muhammad. The gist of their evidence is that Mst. Sharfia Begum was in possession of the house in dispute. Since I have come to the conclusion that the present petitioners failed to prove their possession of the house in dispute within two months of the initial order. I do not propose to discuss at length on the evidence produced by the opposite-party.

14. I will not interfere in revision with the appreciation of the evidence by the Courts below unless it is shown that the con clusions reached are manifestly incorrect or unjust and this has c not been done in the present case.

15. Since the petitioners in my opinion were rightly held to have failed to prove that they were in possession of the house within two months of the date of the preliminary order and since Mst. Sharfia Begum who is not a party to these proceedings was found to be in possession, the parties were very properly left to their remedy in a competent (Civil) Court. The revision petition fails and is accordingly dismissed. S. A. H./S. Q. Petition dismissed.