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Criminal Miscellaneous No. 4122 of 1969, decided on 27th November 1969.

Ss. 145 (4) & 146 Dispute as to possession of immovable property‑Receiver, appoint ment of‑Subject to existence of conditions laid down in S. 146 Magistrate purporting to act under S. 145 (4) attaching disputed property and also appointing Receiver without completion of enquiry under S.145‑Order of Magistrate regarding appointment of receiver, in circumstances, held, invalid.

In the instant case the Magistrate had fixed a date for inquiry under section 145(4), Cr. P. C. but on the prayer of one of the parties, before such fixed date, attached the property and also appointed a Receiver. It was contended that appointment of a Receiver without fully complying with the provisions of sections 145 and 146 of the Criminal Procedure Code, 1898 was not permis sible and the Magistrate purporting to have acted under section 145(4) could not appoint a Receiver which could only be done after the enquiry had been completed under section 145:

Held : the Magistrate, in circumstances, could attach the property but the appointment of Receiver could be done only if conditions laid down in section 146, Cr. P. C. existed. The order of appointment of Receiver was thus invalid.

Ch. Khurshid Ahmed for Petitioners.

Wazir Ahmad Khan for the State.

On a report submitted by Station House Officer of Mandi Baha‑ud‑Din Police Station, District Gujrat, under section 145, Cr. P. C. to the effect, that there was a dispute between two factions of village Lakhenewala, over the possession of 28 acres of land and there was danger of breach of peace between them, Sheikh Akhtar Ali, Resident Magistrate, Mandi Baha‑ud‑Din, summoned the contending parties and heard them on 12th June 1969. Being of the view, that there was a dispute over the possession of the land, which was likely to end in the breach of peace, he directed the contending parties to put in their written statements and produce all other evidence in support of their respective claims on 18th June 1969. No proceedings were taken in the case on that date and the case stood adjourned to 1st July 1969. On the last mentioned date, at the request of learned counsel for the parties, the case was adjourned to 18th July 1969.

2. On 3rd July 1969, Khushi Muhammad, respondent No. 2 in the present proceedings, made an application to the Court, that the danger of breach of peace still persisted and that as a precautionary measure, the disputed land may be attached and made over to a Receiver. Notice of the application was given to the opposite‑party and on 8th July 1969, the learned Magistrate, acting presumably under section 145(4) of the Criminal Procedure Code, passed the following order, given as Annexure D', in the case :‑

"Both the parties are present through their counsel. I have heard them at length. Actually the case was fixed for evidence on 18th July 1969, but party No. 1 had put in an application, on 3rd July 1969, with a request that the property in question should be attached, because the situation being gravely explosive warrants an immediate action. In support of its contention party No. 1 has filed a copy of police report and the fact that action under section 107/ 151, Cr. P. C. is being taken against both the parties again and again. In continua tion of my order under section 145(1), Cr. P. C. passed on 12th June 1969, I order that the property in question should be taken over by the police. The Station House Officer, Mandi Baha‑ud‑Din is appointed Receiver in this case. He will keep a regular account of every thing attached with the disputed property. This order shall remain in force till the time I announce my decision. The case being of emergent nature will be taken up for evidence on 15th July 1969, instead of 18th July 1969 (originally fixed). Both the parties agree to this change of date. Announced."

3. It is with regard to the aforementioned order, that the petitioners feeling dissatisfied have come to this Court by way of petition under section 561‑A, Cr. P. C. asking for quash ment of the same.

4. The parties have been heard at length.

5. This case has had a chequered history. Khuda Bakhsh, respondent in the instant petition, along with some others instituted a suit for declaration against one Saleh Muhammad and 27 others including the Land Commissioner of Gujrat praying for the grant of a decree to the effect, that they were the owners in possession of the suit land. The suit was instituted on 22nd December 1958, and was dismissed on 16th June 1961. Appeal preferred by the plaintiffs failed on the ground, that it had abated because of the death of one of the defendants, whose legal representatives had not been brought on the record. The matter did not end there. The unsuccessful plaintiff's then came to this Court and filed Second Appeal from the Order (No. 133 of 1964), which is still pending.

6. Thereafter criminal litigation started between the parties. On a report submitted by Mandi Baha‑ud‑Din Police Station on 10th February 1965, to the effect that there was a dispute about the possession of land between Khuda Bakhsh respondent, and three others on one side and Asghar petitioner and six others oh the other. On the request made by Khuda Bakhsh order of attachment of property issued on 19th February 1965. However, as is evident from Annexure A', it is clear, that the order of attachment was vacated by Mr. Naseer‑ud- Din, Magistrate 1st Class, Mandi Baha‑ud‑Din on 18th October 1965, on grounds inter alia, that the parties had been bound down under section 107, Cr. P. C. to keep peace and the matter was pending in a civil Court.

7. Reverting to the present petition it may be observed, that strong objection has been taken by the petitioners to the appoint ment of a Receiver without fully complying with the provisions of sections 145 and 146 of the Criminal Procedure Code. Learned counsel for the petitioner contended, that the learned Magistrate claims to have passed the impugned order under subsection (4) of section 145 of the Criminal Procedure Code, which did not permit him to appoint Receiver of the property, which could only be done after the inquiry had been completed under section 145. The contention appears to be correct and has not been seriously opposed. Subsection (4) of section 145, Cr. P. C. deals with "Inquiry as to possession." It provides :‑

"The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse, the statements so put in. hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided 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:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section."

It shall be seen that normally the function of a Magistrate dealing with the disputed claims with regard to the possession of property under section 145, is to peruse the statements put in before him and not only hear the parties, but also to receive all such evidence, as they may like to produce and it is thereafter, that he has is to take further action. It is no doubt true, that it is within the jurisdiction of a Magistrate, even at the inquiry stage, to attach the property in dispute, provided, he considers the case one of emergency, but this attachment persists pending inquiry under section 145, Cr. P. C. and not further. Learned Magistrate, as has been pointed out above, had himself adjourned the case to 18th July 1969, when the parties had to put in their written statements before him and also any other evidence, that they might have liked to produce. However, without waiting till such time, he not only attached the disputed property, which he could validly do, under section 145(4), if the circumstances so B required, but also proceeded further and appointed Station House Officer, Mandi Baha‑ud‑Din as its Receiver. This step could be taken by him only, if the conditions, laid down under section 146, existed. I am, therefore, of the view, that the impugned order of the learned Magistrate is invalid to tire extent of appointment of Receiver of the disputed property, although his order of attachment may not be open to challenge at this stage. For the foregoing reasons, therefore, the petition is partly allowed to the extent that the order of the learned Magistrate appointing Station House Officer of Mandi Baha‑ud Din Police Station as Receiver of the disputed property is set aside.

8. It is made clear, that this order shall not stand in the way of the learned Magistrate to appoint a Receiver of the disputed property, in after completion of inquiry within the meaning of section 145, Cr. P. C. lie comes to the conclusion that the necessity of appointment of a Receiver, as envisaged by section 146, Cr. P. C., existed.

A. E. Petition partly allowed.

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