1984 P Cr (PLP)

Qazi Ghulam Rauf for Respondent. Date of hearing: 16th March,1983. By this petition under section 561-A, Cr.P.C. Muhammad Anwar and others (petitioners) want the quashment of the order of the Magistrate 1st Class, Abbottabad dated 22nd January,1982 and the order of the Sessions Judge, Abbottabad dated 4th May, 1982 whereby the possession of the respondents over the land in dispute was upheld and the petitioners were directed to seek their remedy in a competent court of law.

2. The proceedings under section 145, Cr.P.C. Were initiated when Haji Muhammad Anwar (petitioner No.1) submitted a complaint to the Ilaqa Magistrate on 2nd March,1981 alleging that he was joint owner with the respondents to the extent of 12 Kanals of land and he was being deprived of his lawful share by the respondents who were cutting the trees from the land and have constructed their houses on a better quality of land in the joint property whereby he was suffering immense loss. This complaint was forwarded to the S. H .O. Police Station Bagnotar by the Magistrate on 4th March,1981 which resulted in a complaint by the police under section 145, Cr.P.C. in the trial Court on 1st April, 1981 against both the parties. In the complaint it is mentioned that Haii Muhammad Anwar (petitioner) was the owner of 12 Kanals of land out of 38 Kanals 2 Marlas situate in village Jogan (Nawanshehr Janubi) comprising ,Chasra Nos. 599 measuring 7 Kanals 11 Marlas, 596 measuring 14 Kanals ,2 Marlas, 597 measuring 1 Kanal 6 Marlas, 598 measuring 6 Kanals 11 ,Marlas and 527/1 measuring 1 Kanal 9 Marlas. It is further alleged that the respondents were cutting trees from the land and were constructing houses thereby causing loss to Haji Muhammad Anwar and that the respondents were also not willing to separate his share by partition. The police officer found immediate apprehension of breach of peace between the parties over the possession of the disputed land and thus submitted the complaint under section 145, Cr.P.C. to the Court. He also proceeded under section 107/151 , against both the parties with the result that they were bound down for keeping the peace.

3. The learned Magistrate passed the preliminary order on 3rd May. 1981 restraining both the parties from interfering with the land in dispute and directed them to submit their written statements. In the written statement submitted by the petitioners it was contended that the land in dispute measuring 36 Kanals 2 Marlas was the joint property of both the parties wherefrom the respondents were cutting the trees, making construction thereon, removing the crops from the land without paying lawful share of the produce to the petitioners, and were also not willing to separate the share of the petitioners by partition. It is further alleged that the respondents being in forceful possession of the land were threaten ing the petitioners with dire consequences. In the written statement the respondents stated that the land is the joint property of the parties and Muhammad Anwar (petitioner) has sold his share in favour of Muhammad Akram respondent. The land was stated to be cultivated by Alam Din as a tenant under the respondents for the last 4/5 years and that till the land was partitioned according to law, the petitioners could not interfere in their possession. They denied the existence of any dispute between' the parties over the possession of the land. It is further alleged that the respondents have constructed their houses since 13 years ago and there being no apprehension of breach peace the proceedings under section 145, Cr.P.C, were not called for. At the trial Haji Muhammad Anwar appeared as P.W.1 and stated that Muhammad Aslam and Muhammad Akram respondents were his brothers and similarly the other parties to the proceedings were also inter-related. He stated that their father died in 1952 and the property was inherited by his children and widow according to law which continued to remain joint since no partition has been effected. He stated that the parties were in joint possession of the land. He had also purchased the. share of his mother vide registered deed dated 25th September, 1980 and a mutation was also attested in his favour. He further stated that 3/4 months before the complaint his rights were denied by the respondents who threatened to kill him if he went near the land in dispute. He also stated that his share of about 12 Kanals was also forcibly taken into possession by the respondents and regarding this area a fictitious document was prepared by the respondents in their favour regarding which he has also lodged a report in the Police Station. In cross-examination he admitted that Muhammad Akram and Muhammad Aslam respondents have constructed their houses in the land in dispute since 1970 and 1973 respectively. He stated that he could not point out the location of his 12 Kanals of land at the spot because it was never separated from the joint property. He also denied that the previous crop was sown in the land by Alam Din the aforesaid tenant.

4. Malik Aman Khan A.S.I. (P.W.2) has submitted the complaint (Exh.P.A/1) under section 145, Cr.P.C. to the Court. Since he found immediate apprehension of breach of peace between the parties, they were also challaned by him under section 107/151, Cr.P.C.

5. Jamil Ahmed Patwari prepared 'Aks Shajra' (Exh. P.W.3/1) of the land in dispute. Manzoor Elahi Patwari produced 'Fard Jamabandi (Exh.P.W.5/1) and copies of the Khasra Girdawaris from Kharif 1966 to Rabi 1981 (EXh.P.W.s/2).

6. Muhammad Akram (respondent) appeared as his own witness and stated that the land in dispute was the inheritance of their father who died in 1952. He stated that property was joint and no partition has ever been effected between the parties. He also stated that one Alam Din was cultivating the land as a tenant on their behalf. They have constructed their houses on the land since long and there was no dispute between the parties over the possession of land in question.

7. Alam Din (R:W.2) stated that the land was the joint property of the parties and he was cultivating it for the last 3 years on behalf of the respondents. He denied that the petitioners ever remained in possession of the land for the last 3 years. He also stated that Muhammad Aslam, Muhammad Akram and the heirs of Ghulam Sarwar have also constructed their houses in the land in dispute. Ali Zaman (R.W.3) also stated that the land was the joint property of both the parties and some of the respondents have also constructed houses thereon.

8. In view of the evidence produced by the parties, the learned Magistrate came to the conclusion that the land in dispute was in actual possession of the respondents and thus their possession was upheld and the petitioners were directed to seek their remedy in accordance with law. On revision the aforesaid finding of the Magistrate was upheld by the learned Sessions Judge, Abbottabad vide order dated 4th May, 1982.

9. The learned counsel for the petitioner referred to the copy of 'Fard Jamabandi' of 1964/65 (Exh.P.W.4/1) wherein the land in dispute is shown as jointly owned by the parties and also in their cultivating posses sion. He also referred to copies of the 'khasra girdawris' from Kharif 1966 to Rabi 1981 wherein the land is shown as self-cultivated by the owners in various crops and one Alam Din is also shown as a tenant on behalf of the owners. The learned counsel argued that in view of this documentary evidence both the parties were in joint possession of the land and therefore, the proceedings under section 145, Cr.P.C. being incompetent were liable to be quashed. However, it may be noted that the proceedings under section 145, Cr.P.C. were initiated at the instance of the petitioners which had ultimately resulted in the impugned order. Moreover the entries made in the 'fard jamabandi' of 1964/65 the khasra girdawaris referred to above stand contradicted by the evidence adduced by the parties which show that the respondents were in actual possession of the land in dispute since prior to the proceedings under section 145, Cr.P..C. and the petitioners though joint owners never remained in actual possession thereof. In the report lodged by Haji Muhammad Anwar (petitioner) in police post Nawanshehr on 27th February, 1981 (Exh. P.C.) he admitted the fact that the property was jointly owned by the parties and it was in the exclusive possession of the respondents. He also stated th9t in spite of repeated demands the respondents were not willing to separate his share privately rather they threatened him with dire consequences in case he demanded his share of the land. Similarly in the complaint under section 145, Cr.P.C. filed by him before the Magistrate on 2nd March, 1981 (Exh.P.A.) he has alleged that he was being deprived of his share of 12 Kanals of land in the joint property by the respondents and not only that he was not paid the produce of his share but the respondents were also cutting the trees from the joint property and were constructing houses thereon which was causing immense loss to the complainant. It may also be mentioned that Alam Din (tenant) applied to the trial Court for being made a party to the proceedings and in his written reply dated 23rd July,1981 Haji Muhammad Anwar (petitioner) denied that Alam Din ever remained a tenant on the land in dispute and that the respondents were in forceful possession of the land who were not paying the share of produce to the petitioners and that since Alam Din had no concern with the land in question, he could not be impleaded as a party to the case. It has already been mentioned that in the copies of the khasra girdaweris Alam Din is shown as a tenant on behalf of the owners but this fact has been denied by Haji Muhammad Anwar (petitioner.) in the aforesaid written reply submitted to the Court. Therefore, it becomes obvious that Alam Din (tenant) was not cultivating the land in dispute on behalf of the petitioners and the assertion of the respondents that he was a tenant on their behalf appears to been correct.

10. The learned counsel for the petitioners argued that the Magistrate has not specifically mentioned as to which of the parties was in actual possession on the date of the preliminary order but the very fact that the respondents were found in possession of the land by the Magistrate since before the initiation of the proceedings under section 145, Cr.P.C, and the petitioners never alleged that they were dispossessed within two months of the preliminary order, the aforesaid submission would be of no consequence. Similarly the arguments of the learned counsel that the property being jointly owned by the parties the impugned orders under section 145, Cr.P.C. were liable to be quashed is without any substance for the reason that the Magistrate was legally bound to find as to whole was in actual possession of the land out of the joint owners and the mere fact that the property was jointly owned by the parties would not exclude the application of section 145, Cr.P.C. In Malik Fateh Muhammad Tiwanal v. The Crown and another P L D 1949 Lah. 397, it was held that:- "The object of the section is the prevention of disputes as to immovable property likely to cause a breach of the peace and the words 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 or the right to own or use immovable property if they are likely to cause a breach of the peace. 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 had determined the rights of the parties or of the persons entitled to possession thereof. 11 . For the aforesaid reasons it cannot be said that the orders impugned in this petition under section 561-A Cr.P.C. amount to the abuse of the process of the Court and since no fault can be found with the orders in question, this application being without any substance is hereby dismissed. M.Y.H. Quashment declined.