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Criminal Revision No. 76 of 1969_, decided on 16th December 1969.

S. 145‑Dispute as to possession of immovable property‑Opposite‑party neither claiming title nor possession of disputed property‑Magistrate, in circum stances, held, had no jurisdiction to proceed under S. 145(1) and to convert proceedings originally started under S. 144 to those under S. 145.

The complainant party filed a petition against the opposite party stating that the erection of shops by the opposite‑party on the bank of a tank adjacent to a mosque which was being used by the Musullies for ablution was causing apprehension of breach of peace. Proceedings under section 144 were drawn up by the Magistrate which were subsequently converted to those under section 145, Cr. P. C. Facts revealed that the opposite‑party had purchased the disputed tank and the complainant party did not claim title to or possession over it:

Held, in the absence of any dispute concerning the posses sion of the tank the Magistrate had no jurisdiction to pass the impugned order under subsection (1) of section 145, Cr. P. C. The order is clearly bad in law and must be set aside.

M. A. Aleem with Abdur Rouf for Petitioner.

Nemo for the Opposite‑Parties.

Date of hearing : 15th December 1969.

This Rule is directed against an order dated 1‑7‑68 passed by Mr. S. M. Israil Hoque, Sub‑Divisional Magistrate, Bogra converting a proceeding under section 144, Cr. P. C. to one under section 145, Cr. P. C.

The facts relevant to the present petition are that the opposite‑party Abdur Rahman filed a petition before the Sub Divisional Magistrate on 2‑5‑68 alleging that a tank in Plot No. 1510 of mouza Sutrapur P. S. Bogra was attached to the Jame Mosque of Bogra and was being used by the Musullies for ablution and that the petitioner Sheikh Ensan Ali alias Haji Ensan Ali and others were trying to erect some shops on the bank of the tank causing apprehension of the breach of peace. The learned Sub‑Divisional Magistrate thereupon drew up a proceeding under section 144. Cr. P. C. on 3‑5‑68 and issued notice upon second party petitioner. Subsequently on hearing both the parties the learned Magistrate converted the proceeding to one under section 145, Cr. P. C. The legality of this order is being challenged by the petitioner.

Mr. M. A. Aleem the learned Advocate appearing on behalf of the petitioner contended that the learned Magistrate had no jurisdiction to pass the impugned order as there was no dispute concerning the possession of the tank in view of the earlier decision of the civil Court which rejected the prayer for temporary injunction restraining the petitioner from exercising possession in the tank in question. It appears from the order dated 1‑7‑68 that the learned Magistrate proceeded under the assumption that the first‑party O. P. claimed the tank in C. S. Plot No. 1510 of mouza Sutrapur as wakf property, that the second‑party‑petitioner claimed to have purchased the said tank from the Mutuwalli of Nawab Estate in 1962 and that the first‑party claimed that the Mutuwalh had no right to transfer the tank to the second‑party, and came to a finding that the tank in question was wakf property and even if the tank was temporarily leased out, there was likely to be serious breach of peace if the second party‑petitioner started construction on any part of the tank. All these assumptions are clearly unwarranted for it does not appear from the petition dated 2‑5‑68 filed by the first‑party opposite‑party Abdur Rahman that he claimed the disputed tank as wakf property nor does it appear from the petition dated 10‑5‑68 filed by the second‑party‑petitioner that he claimed to have purchased the tank from the Mutuwalli of the Nawab Estate. The first‑party‑opposite‑party simply stated that the tank was adjacent to the Jame Mosque of Bogra and was being used by the Mussallies for ablution and second party‑petitioner asserted that he had purchased the tank from late Mr. Muhammad Ali and was in possession of the same. The observation of the learned Magistrate that the tank was temporarily leased out is also erroneous. I have looked into the document dated 26‑6‑62 executed by late Mr. Muhammad Ali in favour of the petitioner and it appears that he had sold the disputed tank to the petitioner as his personal property. It further appears that after five years of the sale one Sheikh Mobin Ahmed filed O. C. Suit No. 291 /67 against the present petitioner in the Court of Munsif of Bogra pray ing for restraining the defendant by injunction from entering into the aforesaid tank and for making construc tion thereon. Pending the disposal of the suit the plaintiff also prayed for temporary injunction. The' learned Munsif found that the plaintiff had no prima facie case to restrain the defendant by injunction and rejected the prayer for temporary injunction. The plaintiff preferred an appeal which was dismissed on 31‑1‑68. It is therefore evident that the civil Court had already come to a finding that there was no case for restraining the present petitioner from exercising possession in the tank in question on the basis of his purchase of the same from late Mr. Muhammad Ali. It appears further that after having failed to restrain the petitioner fr.0om exercising possession in the tank through the civil Court, the interested party took recourse to the Criminal Court and started a proceeding under section 144, Cr. P. C. which was converted to a proceeding under section 145, Cr. P. C. 'The opposite‑party Abdur Rahman did not claim any title or n possession in the tank in question and so there was no dispute concerning the possession of the tank. Prima facie, the possession of the tank rested with the petitioner and there was no cause for restraining him for exercising his posses sion. In the absence of any dispute concerning the possession of the tank the learned Magistrate had no jurisdiction to pass the impugned order under subsection (1) of section 145, A Cr. P. C. The order is clearly bad in law and must be set aside,

The Rule is accordingly made absolute and the order dated 1‑7‑68 passed by the Sub‑Divisional Magistrate of Bogra in Case No. 88M/68 is set aside.

Rule made absolute.

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