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Criminal Miscellaneous No. 57 of 1981, decided on 17th December, 1981.
Ss. 145 & 561-A-Dispute as to possession of immovable property-Dispute alleged over possession of open space-No such open space existing on spot over which possession could be had-10 Subject of dispute found opening of windows and doors on second storey of applicant-Held; resort to criminal Court adopted just to harass and humiliate applicant-Proceedings under S. 145 quashed in circumstances of case.---[Dispute as to possession of immovable property].
Raja Muhammad Siddique for Applicant.
Sharif Tariq for Non-Applicant.
Date of hearing/institution : 9th/17th December, 1981.
This is an application under section 561-A, Cr. P. C. for quashment of the proceedings under section 145, Cr. P. C. taken by the Revenue Assistant Magistrate first class in respect of a place which is a second storey of a house constructed by the applicant. There is no place in dispute lying as an open space owned and possessed by the non-applicant over possession of which there may be a dispute so as to cause a breach of peace.
There is no truth in the application of the non-applicant under sec tion 145, Cr. P. C. before the Magistrate.
As per plan of the site allegedly in dispute, attached with the appli cation, there is shown an open space over possession of which a dispute is alleged by the non-applicant between the parties. The comparative study of the plan attached with the application under section 145, Cr. P. C. and the plan attached with a civil suit filed by the non-applicant before the Court of Sub-Judge will reveal that the real quarrel is over opening of windows and doors in the walls of upper storey over-looking the court yard and the house of the non-applicant as claimed thereby disturbing the privacy for which an injunction is sought from the civil Court.
The spot which is shown by the non-applicant as a place of dispute is covered by the first floor of the house of the applicant herein on which construction of second storey was started by the applicant and a quarrel arose thereat on the opening of windows and doors on the plea of the privacy to be disturbed in case the applicant was allowed in opening the windows and doors which will become a source of trouble and a cause of inconvenience to the non-applicant. The civil suit is still pending between the parties and awaits the determination of the points in issue.
No open space as shown by the non-applicant in his application exists on the spot over which he could have had his possession as the spot in dispute is covered by the first storey of the house constructed by the applicant.
In obedience to the order of attachment made by the trying Magis trate a Police Officer attached the so-called piece of land in dispute between the parties and he while making attachment found on the spot 'that it was the second storey of the house of the applicant which was made the subject of dispute by the non-applicant and still the attachment. was effected of a thing which was not at all in possession of the non-applicant. Obviously a resort to the criminal Court was adopted by the non-applicant just to harass and humiliate the applicant. Resultantly, I think the case under section 145, Ci. P. C. was fictitiously made to carve a way for harassment of the applicant.
That being so, this application is accepted and the entire proceedings initiated by the trying Magistrate are quashed and the application under section 145, Cr. P. C. is dismissed hereby. The property attached shall stand released. At the end I. may like to remark that it will suffice to say for the person bringing a false application before the trying Court that lie is to have what ALLAH' has said and ordained for such a person.
Order allowed.
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