1969 P (PLP)

Where after going into evidence Magistrate found that 1st party was in actual physical possession of disputed land and the possession had been given to 1st party in a compromise by the opposite‑party, he ordered that the 1st party shall remain in possession until evicted in due course of law. It was contended that the Magistrate ought to have found that the 1st party was in possession within two months next before the date of preliminary order: Held, finding of possession at the date of the preliminary order is enough and it was in circumstances not necessary for the Magistrate to record a finding whether the 1st party was in possession within 2 months next before that date. Abdul Matin Choudhury for Petitioner. Azizur Rahman Choudhury for the Opposite‑Party. This revisional application arises out of a proceeding under section 145 of the Cr. P. C. After going into evidence the learned Magistrate found the 1st party‑opposite party in actual physical possession of the disputed land and accordingly he ordered that the first party shall remain in possession until evicted therefrom in due course of law.

2. The present application raises two points of law, namely whether the final order passed by the Magistrate is maintainable in the absence of evidence and finding to the effect that there was a continuing danger of a breach of peace; and whether the finding of possession in favour of the first party is vitiated by considera tion of the Ekrarnama whereby the first party claims to have come into possession of the land which is the subject of dispute in this case.

3. The first question of law has been set at rest by the decision of the Supreme Court of Pakistan in the case of Malik Manzoor Elahi v. Lala Bishambar Das and another (P L D 1964 S C 137). Therein it was held: "Provisions of section 145 indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word "exists" in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided in this section is no longer called for and should be put an end to."

4. It is thus clear that the danger of breach of peace must continue till the time of the final order and where there is no danger at any point of time of any further breach of public peace taking place the proceeding should be put an end to. The point that requires consideration in this case is whether there is evidence of continuing apprehension of breach of peace or whether there is evidence to the effect that there is no longer any such apprehen sion. The learned Magistrate found as follows: "So the 1st party took the land in his possession with the help of 2nd party. All the P. Ws. prove his possession. P. Ws. 2 and 5 worked in the P/I. The P. Ws. also prove that there is apprehension of breach of peace". From this and the evidence on record it is manifest that the apprehension of breach of the peace was in existence at the time of the final order. There is no finding of the Magistrate on the basis of any evidence to the contrary.

5. The facts relevant to the second point of law referred to above are that there was a misappropriation case for Rs. 2,700 against the 2nd party's father brought by the 1st party Abdur Rahman and it ended in compromise by an Ekrarnama Exh. 1 signed by both the parties. It appears from the judgment of the learned Magistrate that he referred to the Ekrarnama Exh. 1 and observed that the 1st party took the land in his possession with the help of 2nd party in terms of the Ekrarnama. It has been argued on behalf of the 2nd party‑petitioner that the admissibility of the Ekrarnama as a document of transfer of possession is barred by section 4 of the East Bengal Displaced Persons (Rehabilitation) Ordinance, 1964. Section 4 lays down that no transfer of any immovable property belonging to a member of a minority community shall be deemed to be valid and legal unless it has been made with the prior permission of the competent authority. In the present case no such permission was obtained. In the explanation appended to the section it has been made clear that "transfer" shall include sale, exchange, gift, will, mortgage lease, sub‑lease or any other manner of transfer. Thus the transfer of possession appears to be included in the "transfer" mentioned in section

4. Exh. 1 is thus not a valid document so far as the question of transfer is concerned. But this will not make any difference in this case regard being had to the fact that all the P. Ws. have proved the 1st party's possession as is manifest from the few sentences qouted above from the judgment of the learned Magistrate.

6. It may be mentioned here that the learned Advocate for the petitioner has made another submission to the effect that the Magistrate ought to have found that the first party was in possession of the land within two months next before the date of the preliminary order. I do not find any force in this argu ment. Subsection (4) of section 145, Cr. P. C. provides that the Magistrate after receiving evidence produced by the parties, should, if possible, decide whether any and which of the parties was at the date of the order in possession of the land. This is subject to two provisos. The first proviso 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. It is no body's case here that the 1st party was dispossessed from the subject of dispute more than two months before the date of the final order and as such no finding was called for to the effect that the first party was in possession within two months next before the date of the preliminary order. Finding of possession at the date of the preliminary order is enough and it was not necessary for the Magistrate to record a finding whether the 1st party was in possession within 2 months next before that date. The rule is discharged. Rule discharged.