P L D 1969 Peshawar 209 (PLP)

"I have already passed order in this case today and decided that the possession of the shop in question should be restored to Ijaz Ali. The S. H. O. concerned may be informed accordingly." On the same date, Memorandum No. 522/ACP, was sent to the Station House Officer, Police Station West Cantt., Peshawar, which is in the following terms :‑ "I have today decided the above‑mentioned case in favour of Ijaz Ali against Altaf Hussain and have ordered that the possession of the aforementioned shop should be handed over exclusively to Ijaz Ali. I, therefore. direct you to comply with this order and submit a report to this Court as early as possible, along with the inventory of things belonging to Altaf Hussain." On this, the S. H. O. reported again on the same date that possession of the premises was handed over to Ijaz Ali, that Altaf Hussain had become rooposh (had evaded appearance) and that his goods etc. which were lying in the shop had been taken out that their inventory was prepared (1 to 36) and that they had been made over to Superdar.

4. Altaf Hussain petitioner filed two Revision petitions in the Court of the learned sessions Judge, one against the finding of the Magistrate that Ijaz Ali was in the exclusive possession of the premises in dispute and the other against the orders of the Magistrate disposing Altaf Hussain petitioner and putting Ijaz Ali in the exclusive possession of the premises. Both the petitions were dismissed by the learned Sessions Judge under the orders dated the 28th of September 1968. Altaf Hussain petitioner has now come in revision.

5. It may be mentioned here that this episode was made further complicated by the efforts of Ijaz Ali respondent to change the nature of the premises during the pendency of these proceedings. The present petitioner put in an application it this Court on the 11th of December 1968, complaining that Ijaz Ali respondent had started construction in order to change the present position of the shop in dispute and that he should bf restrained from effecting any change in the premises. The two revision petitions had already been admitted to a regular hearing under the detailed orders dated the 6th of December 1968 indicating that the Courts below had misdirected themselves and an early hearing had been ordered as the petitioner has been dispossessed of the shop. On the application for maintaining status quo, the following orders were passed on the 13tl December 1968 :‑ In the meantime interim order should issue to the respon dent not to proceed with the construction as alleged in para. of the affidavit." On this, the police reported on the statement of Ijaz Ali that he claimed to have converted the shop into a hotel and that he would make no other alteration during the proceedings in this Court.

6. Learned counsel for Ijaz Ali respondent raised a prelimi nary objection that the present petitions for revision have become infructuous as the nature of the premises has been altered. The objection was resisted by the learned counsel for the petitioner on the ground that the petitioner's rights in the property given to him under the West Pakistan Rent Restriction Ordinance and under section 30 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958 cannot be taken away by the unlawful act of the contesting respondent and that this Court has ample powers under section 439 (1), Cr. P. C. read with section 423 (1) (d), Cr. P. C. to "make any amendment or any consequential ,4 or incidental order that may be just or proper." If this Court comes to the conclusion that the petitioner has been unlawfully dispossessed, it has powers to make any con sequential orders for the possession being restored to the petitioner. The preliminary objection is, therefore, disallowed.

7. It has been noticed that the prayer in both the Revision Petitions Nos. 257 and 258 of 1968 is the same, namely, that the orders of the lower Courts may be set aside and possession of Shop Dar No. 94‑A/36 may be delivered to the petitioner. In both the petitions the copies of the impugned orders are of the main order passed in the case and not of the summary of the order or of the order passed on the application made under section 522, Cr. P. C. It was, however, verbally stated by the learned counsel for the petitioner that Criminal Revision No. 258 of 1968 relates to the order for restoration of possession made in favour of respondent No. 1.

8. The jurisdiction bestowed on the Magistrates under section 145, Cr. P. C., so far as it relates to the present case, is provided in subsections (1) and (4) and the two provisos attached thereto and subsection (6) of section 145 of the Code. Under subsection (1), the Magistrate is to make an order in writing requiring the parties to the dispute to attend his Court within a time to be fixed and "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute". The term "actual possession" is important. After the written statements have been filed, sub section (4) lays down the directions to the Magistrate for inquiring into the fact of actual possession of the property in dispute. It is laid down that the Magistrate shall then (1) without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, (2) peruse the statements so put in, (3) hear the parties, (4) receive all such other evidence as may be produced by them respectively, (5) con sider the effect of such evidence, (6) take such further evidence (if any) as he thinks necessary, and (7 ) if possible (8) decide, whether any and which of the parties, was at the date of the order before mentioned in such possession of the said property. The provisions lay down a clear warning to the Magistrate that he is to decide, if possible, as to which of the parties was, at the date of the order made under subsection (1) in actual possession of the property in dispute and it is to be done "without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute." The right to possess is left to be determined by the Civil Court. The Magistrate is to decide, if possible, as to which of the parties was in actual possession on the date of the preliminary order. The first proviso to subsection (4) ibid contains a qualifi cation to the above and lays down 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." The second proviso to subsection (4) gives a discretion to the Magistrate in a case of emergency to order the attachment of the property in dispute pending his decision under this section. Subsection (6) lays down that if the Magistrate decides that one of the parties was "or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order (1) declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, (2) forbidding all disturbance of such possession until such eviction, and (3) when he proceeds under the first proviso to subsection (4) nay restore to possession the party forcibly and wrongfully dispossessed." The Magistrate passed the final order in the case on the 29th of August 1968 in the following terms :‑ "In view of my aforegoing discussions, I find that Ijaz Ali is entitled to remain in exclusive possession of the shop in dispute and Altaf Hussain respondent No. 2 can seek his remedy in Civil Court if he so desired." These orders were not in terms of subsection (6) of section 145, Cr. P. C. and were not in accordance with the evidence produced in the case. The Magistrate, however, adopted a curious pro cedure and added another order on the same date which is quoted in the earlier part of paragraph 3 above and which purported to be a summary of the main order passed in the case although it is very materially different from the main order. According to this order "the shop in dispute i.e. No. 35/36, Arbab Road, Peshawar Cantt., is to remain in the exclusive possession of Ijaz Ali respondent No.

2. He is therefore allowed to take posses sion of the shop . . . ." This is a material improvement upon the earlier order passed in the case. It is established law that the Magistrate was competent to pass only one final order in the case and was functus officio when he had passed the earlier order which is mentioned in this order in the following words "The detailed order is attached." The Magistrate had, therefore, no jurisdiction to pass this second order and this has to be ignored. This was not all and Ijaz Ali respondent put in another application on the same date under section 522, Cr. P. C. for his being restored to the possession of the shop and the Magistrate without issuing any notice to the present petitioner or giving him any hearing passed thereon the order quoted in the latter part of paragraph 3 above and on the same date issued the memorandum to the Station House Officer for handing over the possession of the shop in dispute to Ijaz Ali exclusively. The S. H. O. was directed to comply with this order and to submit a report to his Court along with the inventory of things belonging to Altaf Hussain. On the same date, the S. H. O. went to the spot, reported the petitioner as rooposh. Broke open his lock, made over the goods recovered from the shop to a Superdar after preparing their inventory consisting of 36 articles, and handed over the possession to Ijaz Ali. All this had taken place without any legal authority. Section 522, Cr. P. C. lays. down that "whenever a person is convicted of an offence attended by criminal force or show of force or by crimi nal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same." The petitioner in this case had not been convicted of any offence, nor was any such offence attended by criminal force etc., nor was there anything to show that the petitioner had the show of such force etc. dispossessed Ijaz Ali of the immovable property. Instead of proceeding under the first proviso to subsection (4) of section 145, Cr. P. C., the Magistrate, for reasons unknown, considered it necessary to proceed under section 522, Cr. P. C. which had no application to the facts of the case. The Magistrate could have ordered restoration of possession under subsection (6) of section 145 ibid if he had given a finding in favour of Ijaz Ali respondent in terms of the first proviso to subsection (4), of section 145 ibid. There is no such finding that Ijaz Ali had been dispossessed of Shop No. 94‑A/ 36 within two months next before the date of the preliminary order made on the 16th of May 1968, and the Magistrate was, therefore, not competent to order restoration of possession under subsection (6) of section

145. No restoration could be ordered at all under section 522, Cr. P. C. The orders of the Magistrate directing the restoration of possession of Shop No. 94‑A/36 to Ijaz Ali were, therefore, without any lawful authority and the proceedings taken by the police in obedience of the said orders were similarly without any authority and have no existence in the eye of law.

9. The main order passed in the case is equally bad. The subject of dispute consists of the shop comprising of two Dars 94‑A/35 and 94‑A/36. Under subsection (4) of section 145 of the Code the Magistrate was debarred from considering the merits or the claims of any of the parties to a right to possess the subject of dispute. He was required to decide, if possible, whether any and, if so, which of the parties was at the date of the preliminary order is actual possession. According to subsection (6) ibid, if the Magistrate decides, that one of the parties was in actual possession of the property in dispute he shall order declaring him to be entitled to possession and forbidding all disturbance of such possession etc. The fact of the matter is that from the very start when the A. S. I. reported the matter at the Police Station and lodged the complaint before the Magistrate and throughout the various stages till the present petitioner was bundled out under the illegal orders of the Magistrate on the 29th of August 1968, the possession of property in dispute was not of any one party but was of both the parties. The Magistrate had ordered attachment of the property under second proviso to subsection (4) of section 145, Cr. P. C. and the report of the police under the said orders is also to the effect that both the parties were in possession of their respective portions, that they by agreement took out their goods, locked up their own portions and that no further action was considered necessary. The Magistrate did not insist for the property being attached and accepted this position. The fact that respondent No. 1 moved an application under section 522, Cr. P. C. for the petitioner being dispossessed and the report of the S. H. O. and the memorandum issued to him by the Magistrate also furnish ample evidence in proof of the fact that the possession of the property in dispute was not of one party but was of both the parties. The entire evidence led by respondent No. 1 himself admits that possession of the two Dars Nos. 94-A/35 and 94‑A/36 was not with Ijaz Ali but was with both the disputants. In these circumstances, it is sur prising to find the Magistrate ordering that "in view of my afore‑going discussions I find that Ijaz Ali is entitled to remain in exclusive possession of the shop in dispute." How could he remain and continue in exclusive possession when he was not in fact in exclusive possession and the Magistrate had, after these orders, to direct the police to remove the petitioner from the possession of a part of the property in dispute.

10. In the result, there is no finding of the Magistrate under the first proviso to subsection (4) of section 145, Cr. P. C. that the petitioner had dispossessed Ijaz Ali respondent within, two months of the preliminary order made under section 145 (1), Cr. P. C. Hence, no restoration could be ordered in favour of Ijaz Ali, and the petitioner could not have been ousted from the property under section 145 (6) ibid. Nor could the posses sion of Ijaz Ali be declared and protected under subsection (6) of section 145 as he was not found, and could not be found, to, be in exclusive possession of the property in dispute and it cannot be disputed that possession of the property in dispute covered by the proceedings was with both the disputants, I, therefore, allow the two revision petitions and set aside the three orders passed by the Magistrate on the 29th of August 1968, declaring the exclusive possession of Ijaz Ali and ordering him to be put in exclusive possession of this property. Since the disposses sion of the petitioner from the portion of the property in dispute under his occupation was not in accordance with law, I direct under section 439 (1), Cr. P. C. read with section 423 (1) (d). C Cr. P. C. that he should be put back in possession in the portion of the property in dispute from which he had been dispossessed on the 29th of August 1968. K B.A. Revision allowed