P L D 1959 (W (PLP)

Date of hearing: 30th September 1959. This is a revision petition by Arbab Rahmatullah Khan and Arbab Muhammad Khan of Tehkal, arising out of proceedings under section 145, Cr. P. C. in the Court of Mr. Zulfiqar Khan, Magistrate Peshawar. The petitioners were arrayed as the second party in the Enquiry Court, and one Arbab Muhammad Hasham Khan as the first party. The proceedings were initiated on the complaint of local Police. The subject‑matter of dispute is a specific portion of 14 kanals out of Khasra No. 145 measuring 150 kanals 15 marlas. The learned Magistrate, while summing up the case, passed his final order in the following terms :‑ "In view of the discussion under point No. 4, the field No. 145 is a joint property in the joint possession of the owners, and therefore section 145, Cr. P. C. is not attracted in this case. According to Note 46 under section 145, Cr. P. C., a Magistrate has no jurisdiction to institute proceedings in a case where the parties had a right to joint possession of the property, and for this reason I dismiss this complaint." On a revision petition by the second party, Mr. Faizullah Khan, Additional Sessions Judge, Peshawar, concurred in the finding of the Enquiry Magistrate and dismissed the petition.

2. A brief history of the dispute between the parties over the 14 kanals plot in question would throw considerable light upon the matter and will be helpful in appreciating the correct position.

3. According to the evidence on the record, Khasra No. 145 was originally owned by a number of persons including the con testing parties. Some 30 years ago the owners effected a private partition, as a result whereof a plot measuring 14 kanals comprising northern portion of the Khasra number was allotted to the second party. The party remained in possession of the plot, until some time in 1950 their possession was challenged. Arbab Rahmatullah Khan and Arbab Muhammad Khan (the second party) filed a civil suit for the possession of the plot, which had fallen to their share in private partition. The suit was compromised and in consequence a decree for possession of the specific plot was granted to them on the 16th March 1953 and eventually they obtained physical posses sion on the spot through execution proceedings. It appears that within two months of the delivery of possession another attempt was made by Arbab Muhammad Hasham Khan (the first party) to dislodge Arbab Rahmatullah Khan and Arbab Muhammad Khan from the plot resulting in a complaint under section 447, P. P. C. This case was also compounded following a statement by Arbab Muhammad Hasham Khan, that the complainants had obtained the possession of the property in dispute, and that he was not interfering with their possession, nor was he asserting any right to it. Accordingly he was discharged. In 1956 yet another attempt was made to disturb the possession of the second party. Arbab Muhammad Khan brought a complaint against Arbab Muhammad Hasham Khan and others under sections 447/148/34, P. P. C., but the same was filed as the complainant did not appear in Court on the date fixed for the hearing of the case. Finally on the 29th November 1955 the police instituted a complaint under section 145, Cr. P. C. against the two parties alleging that there was again a dispute between them over the plot, which might result in blood feud.

4. It will have been noticed from the concluding portion of the Magistrate's order reproduced above, that he was concerned more with the "rights" of the parties rather than with their "actual possession". It is quite clear that the learned Magistrate's very approach to the case was basically wrong and he failed to consider the legal aspect in its correct perspective. The words "without reference to the merits of the claims of any such parties to a right to possess" in subsection (4) show that the Magistrate should confine himself only to the question of "actual possession", and that he has no power to enquire into and decide on the "rights" of the parties to possession of the property. However, in the circum stances of a particular case, the Magistrate might deem it necessary to enquire into the "rights" of the parties and to corroborate the evidence as to "possession by the presumption that possession follows title, if on enquiry he finds that either the evidence as to possession produced by the parties is equally balanced, or there is no conclusive evidence at all, and that he is unable to reach a conclusion which of the two contesting parties was in possession. But here again, the learned Magistrate fell into an error, for he proceeded on the assumption that actual possession of the disputed plot was never delivered by the Civil Court to the second party, an assumption which is not warranted by the documentary evidence brought on the record.

5. As already pointed out a decree for possession of the specific plot of 14 kanals was granted to Arbab Rahmatullah Khan and Arbab Muhammad Khan by the Sub‑Judge, Peshawar on the 16th March 1953. It was a consent decree awarded on the state ment of the counsel of Arbab Muhammad Hasham Khan. The possession of the plot was delivered to the decree‑holders by the patwari and girdawar halqa on the spot during the execution pro ceedings in compliance with the order of the Court on the 24th July 1953. While discussing the question of the delivery of possession, the learned Magistrate expressed himself in the following words :‑ "As has been explained above, there is no evidence to show, that Arbab Muhammad Hasham Khan etc. were informed at the time of the delivery of the possession of 14 kanals of land, and they absented themselves in spite of this information. In the absence of any such proof, I am quite correct to conclude, that the possession of the 14 kanals of land was stealthily given to the second party in absence of the first party, and therefore it does not amount to the delivery of actual possession, as required under section 145, Cr. P. C. The view of the learned Magistrate that the Civil Court, or for that matter, its agency could not legally deliver possession to the decree‑holders in the absence of the judgment‑debtor is again not correct. According to him, the burden lay on the decree‑holders to prove that notice was served upon the judgment‑debtor and that he deliberately absented himself. While reaching this conclu sion, the Magistrate, had conveniently overlooked the well‑known rule of law of evidence, that all official acts are presumed to have been done according to law. In the present case, there was pre sumption in favour of the decree‑holders that the Court delivered possession of the suit property to them after all legal requirements including notice to the judgment‑debtor were duly complied with. In such a case it lay heavily on Arbab Muhammad Hasham Khan to prove that no notice was issued, or that he received no such notice. But apart from that, it was absolutely unnecessary for the learned Magistrate to go into the question whether possession of the suit property was delivered to the second party openly and strictly in accordance with law, or stealthily" as assumed by him, because even' if it is conceded for the sake of argument that the delivery of possession was not strictly according to law, it cannot be seriously disputed that possession was actually delivered. If the delivery ‑of possession was unlawful, the proper course for the judgment‑debtor was to have recourse to the appropriate authority for the redress of his grievance and not to take the law into his hands and interfere with the decree‑holders' possession. It will be recalled that when after some time Arbab Muhammad Hasham Khan made an unsuccessful attempt, to interfere with the possession of Arbab Rahmatullah Khan and Arbab Muhammad Khan, they instituted a complaint against him in a Criminal Court. In this case the parties effected a compromise which inter alia stated :‑ "We both the parties have compounded the dispute. Posses sion of the disputed property has been already delivered to the complainant (Arbab Rahmatullah Khan) by the Civil Court. The accused (Arbab Muhammad Hasham Khan and others) have no possession over the property. The accused have no claim to or concern with the property in dispute. Consequently the com promise may be accepted." In the light of these facts having a direct and important bearing on the question of "possession", it is idle to argue that possession of the disputed property was not delivered to the second party, or that the delivery of possession suffered from any legal defect. After Arbab Muhammad Hasham Khan admitted in clear and unambiguous words that the possession had been already delivered to the other party by the Civil Court, and that they (Arbab Muhammad Hasham Khan and others) were neither in possession of the property, nor had they any claim to it, the manner in which the possession was delivered, or validity of the possession, could not be challenged.

6. The law, as laid down in section 145, Cr. P. C., is quite clear. The Magistrate who initiates proceedings under this section has to determine the question of "actual possession" with reference to a particular point of time, namely, the date of the preliminary order, and in the investigation of this question any previous decree of a Civil Court, relating to possession of the property, has to be taken into consideration, because the fact of delivery of possession raises a presumption in favour of the continuance of that possession, unless the other party proves that subsequently they succeeded in turning out the decree‑holder from the land and in taking its possession. The learned Magistrate has reached a conclusion contrary to the Civil Court's decree and the suit of execution pro ceedings for reasons which are neither cogent, nor sufficient. Regarding other evidence relating to actual possession produced by the second party, he has summarily discarded it mainly on the ground that the previous delivery of possession was not according to law, a conclusion which has been already shown to be perfectly unjustified.

7. The view of the learned Magistrate that since Khasra No. 145 was jointly owned by several persons who had a right to its joint possession, he had no jurisdiction to initiate proceedings under section 145, Cr. P. C. for the dispute was between co‑owners, and was therefore not contemplated by the section is also incorrect. On being satisfied that a dispute exists concerning land, the Magistrate at once acquires jurisdiction to enquire into the fact of actual possession, though he cannot consider the question whether the parties have a right to possession jointly or have a title to separate possession. If the Magistrate finds that one of the parties was in actual possession on the date of the preliminary order, or within two months next before the date of that order and has been forcibly or wrongfully dis possessed, he must uphold the possession of the person in actual possession of the property, irrespective of the rights of the parties. Even in cases where one co‑owner is in fact in actual possession of the joint property to the exclusion of other co- owners, an order can be passed upholding his possession as against other co‑owners who may be entitled to joint possession, but in fact are not in possession of the property.

8. In the case under revision there is sufficient evidence to justify the conclusion that at the time of the preliminary order, or at least within two months next before the date of that order, the second party was in possession of the dispute, and in these circumstances the Magistrate had the jurisdiction to take cognisance of the dispute and to pass an appropriate order in the exercise of his powers under section 145, Cr. P. C. Since he has failed to pass an appropriate order anti the learned Sessions Judge also for insufficient reasons declined to interfere, the revision petition is accepted, and it is ordered that Arbab Rahmatullah Khan and Arbab Muhammad;" (the second party) are entitled to, and will remain in, possession of the 14 kanals plot north of Khasra No. 145 as decreed by the Civil Court, until evicted there-from in due course of law. Further, all disturbance of their possession is forbidden until such eviction. M. A. /A. H. Petition accepted.