P L D 1961 (W (PLP)

3. Against this decision, the Central Government filed a reference under section 43‑A of the Evacuee Property Act, before the Evacuee Properties Enquiries Tribunal, Karachi, which upset the decision of the Custodian. Thereupon the applicant went in appeal to the Supreme Court. The Supreme Court granted special leave to appeal, and passed an order suspending the operation of the decision of the Tribunal.

4. On the 24th of September 1960, Maqsood ul Haq, respondent No. 2, made an application to the Deputy Commis sioner, Sanghar, in this application, among other things, he alleged that the land in dispute which originally belonged to Seth Kodumal deceased, had been allotted to his mother. Mst. Humairan Khatoon against her verified claim on the 28th of November 1959, and that the possession of the same had been delivered to him on behalf of his mother on the 2nd of December 1959. On proceeding further, he stated that on the 5th of September 1960 at 4 p.m. while he was sitting in his otak in the disputed land along with his Kamdar, Murad Bux, and 3 or 4 other persons, Khubchand son of Jassumal, accompanied by ten others, armed with hatchets and lathis, came up and drove him and his men out, and threatened that they would be murdered, if they would return to the disputed land. In view of these facts, he alleged, he apprehended that he himself and his men would thereafter not be allowed to visit the disputed land, and the crop that was standing thereon would be misappropriated by the opposite‑party.

5. This application of Maqsood ul Haq, respondent No. 2, was sent by the District Magistrate to the Assistant Commissioner and S. D. M. Shahdadpur for disposal.

6. On the 1st of October 1960, the S. D. M. passed an order under section 145 (1), Cr. P. C. and an order in regard to the crops standing on the disputed land, the same as is in revision in this case.

7. On behalf of the applicant, it is contended by Mr. A. S. Pirzada that in order to have jurisdiction in the matter, the learned S. D. M. should have made an order in writing stating the grounds on which he was satisfied that the dispute was likely to cause a breach of the peace within the local limits of his jurisdiction. In any case, he had no jurisdiction to appoint a receiver without holding an inquiry as to the possession under section 145 (4), Cr. P. C. Only after this inquiry, if he were unable to satisfy himself as to the person who was then in its actual possession, he could attach the property in question, and keep it under such attachment until a competent Court had determined the rights of the parties thereto. In this ‑case, however, the learned Sub‑Divisional Magistrate had neither heard the applicant in the matter, nor allowed him to produce any evidence in support of his case, and thus had passed an ex parte order without any jurisdiction. Besides, in order to appoint a receiver under subsection (2) of section 146, Cr. P. C., the learned S. D. M. had to attach it under subsection (1) of section 146, Cr. P. C. As he had not done so, his order in question was illegal.

8. This contention, however, does not appear to be tenable, as the order in question was obviously passed by the learned S. D. M. under the provisions of subsection (8) of section 145, and not under subsection (2) of section 146, Cr. P. C. It would have been necessary td attach the crop in question under sub section (1) of section 146, if an order for the appointment of a receiver under subsection (2) of section 146, Cr. P. C. was required to be passed in this case. An order of the appointment of a receiver under subsection (2) of section 146, Cr. P. C. could, no doubt, be passed after an inquiry was made under subsection (4) of section 145, Cr. P. C. regarding the nature of the dispute between the two parties, and the Magistrate concerned had decided that none of the parties was in actual possession of the subject‑matter of dispute on the date of the preliminary order. The object of such an attachment, it appears, is to keep the property in safe custody and to prevent the opposite‑party from creating a breach of the peace in the course of its attempts to obtain actual possession of the same. Such attachment has to go on till the rights of the parties to the disputed properties are effectively determined by a competent Court.

9. Subsection (8) of section 145, Cr. P. C. however, provides:‑ "If the Magistrate is of opinion that any crop or other produce .of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale‑proceeds thereof, as he thinks fit." Under these provisions, the Magistrate concerned may, it seems, at any time before the inquiry is made, or while it is being made, pass an order for the proper custody of any crop or produce of the disputed land.

10. The first paragraph of the order in question reads:‑ "The Sub‑Divisional Magistrate, Shahdadpur, is hereby pleased to appoint Mr. Hassan Jamil of Tando Adam as receiver to receive and manage the produce of disputed land in claim of Mst. Humeran Khatoon from Kodumal's Khata, situated in deh Hurbari measuring 400‑0 acres. Parties are further ordered not to interfere with management. The receiver is ordered to maintain proper accounts in this respect." It would thus be noticed that the order in question does neither refer to section 107 nor to section 146, Cr. P. C. It is obviously passed in the very beginning of the proceedings under section 145, Cr. P. C. As already pointed out, Maqsood ul Haq, clearly showed that not only he had been driven out from the disputed land, but be had also been deprived of the crops standing thereon. It was in view of this position, that the learned S. D. M. had passed the order in question under subsection (8) of section 145, Cr. P. C. along with the order passed under subsection (1) of section 145, Cr. P. C. The order in question was apparently an interim order, and could have been reconsidered, and possibly modified, by the learned S. D. M., if the applicant had appeared before him, and succeeded in making out a case for his doing so.

11. This being the position, I see no justification to interfere with the order under revision. This application is, therefore, dismissed. K. B. A. Petition dismissed.