2002 PLP 1989 (MLD)

On the other hand, learned counsel for respondents Nos. 1 and 2 has contended that the application under section 145, Cr.P.C. was admittedly filed beyond stipulated period of 60 days, hence the learned S.D.M. became functus officio to exercise the power for restoration of the premises inasmuch as the applicant divorced his wife i.e. respondent No. 1 one year back and since after divorce the respondents Nos. 1 and 2 had occupied the same plot. Learned counsel for the State has adopted the arguments, advanced by the learned counsel for respondents Nos. 1 and

2. Admittedly, the applicant divorced his wife on 15‑5‑1997 and disinherited his sons and daughters on 22‑5‑1997 immediately whereafter, according to applicant's own version, his ex‑wife and son with the help of some criminal type persons unlawfully dispossessed him for which he reported the matter to police immediately and ultimately after about two years i.e. on 25‑5‑1999 he filed application before the SDM, Eidgah for restoration of possession of the house, in question, to him which application was rejected on the ground, inter alia, that jurisdiction of the trial Court was barred by section 145(4), Cr.P.C. For the sake of convenience relevant clause of section 145, Cr.P.C. is reproduced hereinbelow:‑‑ "

145. Procedure where dispute concerning land etc. is likely to cause breach of peace.‑‑ (1) Whenever a District Magistrate. Sub‑Divisional Magistrate or Magistrate of the First Class is satisfied from a police report or other information that a dispute like 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. (2) ........................................ .. (3) . . (4) Inquiry as to possession. ‑‑‑The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided 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 such date: Provided also, that if the Magistrate considers the cases one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. (5) .......................................... (6) ......................................... (7) .......................................... (8) .......................................... (9) ......................................... (10) . The perusal of the relevant clause of section 145, Cr.P.C. clearly shows 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 such date. In the present case, admittedly, the applicant was ousted from the house, in question, by his ex‑wife and son on 15‑5‑1997 and he filed application for restoration of possession before the learned SDM, Eidgah on 25‑5‑1999 inasmuch as with the delay of about two years and such delay cannot be adjusted in view of the two months bar stipulated by subsection (4) of section 145, Cr.P.C., under which the applicant himself sought restoration of possession of the house, in question. The proper forum for the applicant was to approach Civil Court for seeking relief in respect of possession of the disputed property. Accordingly, I am of the considered view that this Criminal Miscellaneous Application does not merit, which is dismissed in limine. H.B.T./S‑201/K Application dismissed.