Law: Criminal Procedure Code (V of 1898)

Section: 145, 146

Criminal Procedure Code (V of 1898) S. 145 read with S. 146 (1)-Facts and circumstances disclosing only constructive possession of both parties-Physical possession of no party determin able-Proper course for Magistrate in circumstances only to act under S. 146 (I)-House ordered to be attached till rights determined by a competent civil Court-Case remanded to be proceeded with under S. 146 (1). Date of hearing : 30th June 1969.   JUDGMENT This is a reference under section 435, Cr. P. C. by the learned Sessions Judge, Gujranwala in which recommendation has been made that the order, dated 20th February 1967, passed, under section 145, Cr. p. C., by a learned Magistrate 1st Class, Gujranwala, whereby the possession of the house in dispute has been ordered to be delivered to Matbela (respondent No. 1), be set aside and the possession be ordered to be delivered to Khanun petitioner. 2. Briefly, the circumstances leading up to the present petition are that the house in dispute is claimed to have been purchased, on 9th October 1965, by Khanun, by means of an alleged deed of transfer (Exh. D. A.) from one Taja. On the other hand, Mathela claims the ownership of the house in dispute on the basis that it is ancestral qua him and belongs to him. It appears that the house was in constructive possession of Mathela, when on the basis of the alleged purchase mentioned above Khanun broke open a wall of that house and put in some articles of daily use. On 8th March 1'966, it is alleged by Mathela, Khanun tried to take forcible possession by opening the walland dueto that a fight took place in which Mathela was injured, as a consequence of which a case under sections 326/149, 148, P. P. C. was registered on 9th March 1966, against Khanun and some others. The police on the one side, started investigating 326 case and, on the other, proceeded under section 107/151, Cr. P. C. against the parties. Not being satisfied with these measures, the police further wanted to take action in respect of the house in dispute and made an application to the Ilaqa Magistrate on 10th March 1966 that the proceedings under section 107/151 had, by then, proved ineffective and that permission be…