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Criminal Revision Application No. 86 of 1975, heard on 24th May 1976,

-- S. 145-Dispute as to possession of immovable property --- Order of Magistrate based on correct appreciation of evidence, both ocular and documentary and respondents found in actual possession of disputed property on day of passing of preliminary order-Order, held, in order and lawful.-[Dispute as to possession of immovable property].

Ali Ahmad for Respondents.

Date of hearing: 24th May 1976.

This revision application is directed against the order dated 21-3-1975 passed by the learned Civil Judge & F. C. M., Tando Bago in the proceedings under section 145, Cr. P. C. brought by the respondents against the appellants.

Briefly, the facts are that on 30-5-1974, survey No. 328 was allotted to the respondents No. 1 and 2 on harap basis in an open Kutchry held by the Barrage Authorities. Respondent No. 1 was allotted 4 acres and respondent No. 2 was allotted 4.29 acres. The respondents thereafter cultivated the survey number and raised paddy crop at their expense, when the crop bad become ready for harvesting, the applicants, alleged to be influential Zamindars, threatened to forcibly take possession of the crop and hence that there arose likelihood of breach of peace. As a result, on 19-11-19-74, respondents moved an application before the Mukhtiarkar and F. C. M. Tando Bago for taking action under section 145, Cr. P. C. and further prayed that till the disposal of the proceedings under section 145, Cr. P. C. a receiver be appointed by the court to take over the crop. The Mukhtiarkar and F. C. M., 7 and Bago thereafter, on the joint request of both the parties, referred the matter to one Ghulam Mustafa Shah, Chairman Union Counsel Chaberlo, who after visiting the sarzamin gave a report to the effect that the respondents herein were actually in possession of the land granted to them and had cultivated the crop in question. Thereafter, the proceedings were transferred to the Court of Civil Judge & F. C. M., Tando Bago who served a notice on the applicants to file their written statement. Applicants filed the written statement and both the parties led evidence.

Learned Civil Judge & F. C. M. on careful appraisal of the evidence, gave s finding that the survey No. 328 was granted to the respondents on harap basis in an open Kutchry by the Barrage Authorities which fact established that the respondents were in actual possession of the survey number in question on 30-5-1974, and since the sowing season started soon thereafter, the crop in question was also raised by the respondents. The relevant finding by the learned Civil Judge & F. C. M. may be quoted in his own words as under:-

"It appears to me, on the grounds duly recorded that a dispute likely to enduce a breach of peace, existed between Usman and Ismail the applicants on the one hand and Bhai Khan, Ahmad, Dhani Bux and Noor Hussain the respondents on the other hand concerning the survey No, 328 of Deh Toori and the paddy crop of that number situated within the local limits of jurisdiction, and the said parties were called upon to give in written statements of their respective claims as to the facts of actual possession of the said survey numbers 328 and its crop and being satisfied by due enquiry had thereupon with out reference to the merits of the claims of either of the said parties to legal right of possession, that the claim of actual possession by the said Usman and Ismail is true.

I decide and declare that they are in possession of the said survey No. 328 and its crop and entitled to retain such possession until ousted by due course of law, and do strictly forbid any disturbance of their possession in the meantime."

It is against this order that the present revision application has been filed.

Applicants Nos. 1, 2 and 3 and their counsel have remained absent while the applicant No. 4 is represented by Mr. Imam Ali Kazi.

The contention raised on behalf of the applicant No. 4 is that the order passed by the learned Civil Judge and F. C. M., Tando Bago was contrary to law, in that, documentary evidence has not received proper consideration of the learned Civil Judge. The contention is without force.

Reading of the impugned order would clearly show that the learned Judge has passed the impugned order after correctly appreciating the scope of enquiry before him and all the material evidence oral as well as documentary, led by the parties. It cannot, therefore, be said that the evidence led on behalf of the applicants was not taken into consideration.

The next contention raised by the learned counsel is that the impugned order is defective in as much as no finding has been given by the learned Judge as to who was in actual possession on the date of the passing of the preliminary order. There is no force in this contention as well. The learned Judge has given a clear finding that the respondents were in actual possession of the survey Number on 30-5-1974. Now, if the respondents are held, and rightly so, to have been in actual possession of the survey number in question on 30-5-1974 and thereafter raised the paddy crop in question, it cannot be doubted that they were in actual possession at the time when the preliminary order dated 19-11-1974 was passed. No other contention was raised.

For the aforesaid reasons, I see no substance in this revision application, which is accordingly dismissed and the order dated 15-4-1975 passed by this court, appointing the receiver, stands vacated.

Petition dismissed

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