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Law in Disputes as to Immovable Property

Article in SSRN Electronic Journal · December 2011

DOI: 10.2139/ssrn.1976298

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Munir Ahmad Mughal

University of the Punjab
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 ‫ﺑﺴﻢ ﷲ اﻟﺮ ّﺣﻤﻦ اﻟﺮ ّﺣﯿﻢ‬
ۡ‫ﻠﯽ َرُﺳۡﻮِﻟِہ اۡﻟَﮑِﺮﯾِﻢ‬
ٰ ‫ﺼﻠﱢﯽ َﻋ‬
َ ُ‫َﻧۡﺤَﻤُﺪٗه َو ﻧ‬

LAW IN DISPUTES
AS TO IMMOVABLE PROPERTY

[Justice ® Dr. Munir Ahmad Mughal]

Introduction:

The provisions of the law dealing with

prevention of offences relating to
disputes as to immovable property are
contained in Chapter 12 of the Code of
Criminal Procedure, 1898 comprising
sections 145 to 148. How will a
Magistrate deal with a situation when he
finds that a dispute likely to cause a

Electronic copy available at: http://ssrn.com/abstract=1976298

breach of the peace exists concerning
certain land between two parties.
Chapter 12 has four sections which deal
with the following subjects, namely,-
 Procedure where dispute concerning
land, etc. is likely to cause breach of
Peace.1
 Power to attach subject of dispute.2
 Disputes concerning rights of use of
immovable property etc.3
 Local Inquiry.4

1
Section 145 of the Code of Criminal Procedure, 1898. This section has 10 sub-sections and it is a self-
contained and sel-explanatory section and requires the Magistrate vested with authority under this section
to confine himself to the section only. [1981 P. Cr. L.J. 294]. Proceedings under section 145 are of
summary nature.
2
Section 146 of the Code of Criminal Procedure, 1898. The provisions of this section are in continuation of
section 145 and are enabling provisions to resolve a controversy qua possession to immovable property in
termsof section 145. [1983 SCMR 1381]. Proceedings under section 146 are also summary nature. Section
146 is supplementary to section 145.
3
Section 147 of the Code of Criminal Procedure, 1898. Proceedings under this section are not concerning
the actual possession over water or land etc but proceedings under section 147 are concerning right of its
user, either by easement or other wise and as such the water or the land itself cannot be attached. Pendency
of proceedings under section 107 the Code of Criminal Procedure, 1898 is not a bar to proceed under
section 147 [AIR 1936 Sind 147]. A right under this section must be a legal right. Where rights of the
parties have been already determined by a Court of law, the |Magistrate cannot take proceedings
undersection 147 in as much as the object of an inquiry under section 147 is only to find out whether the
allaeged right exists or not. [AIR 1927 Bombay 654]. User as of right and User by way of mere license or
permission are not one and the same thing. For invoking exercise of power under section147 there must be
evidence of user as of right.
4
Section 148 the Code of Criminal Procedure, 1898. The object of an inquiry is to aid the Magistrate in
appreciating the evidence as to the main point e.g. in determining the boundaries of the property.

Electronic copy available at: http://ssrn.com/abstract=1976298

JURISDICTIONAL
REQUIREMENTS FOR
PROCEEDINGS UNDER SECTION
145 CR. P. C.

Proceedings under section 145 are meant

to prevent breach of peace and to avert
any dispute as a precautionary measure
and to maintain status quo till the parties
have their matter decided by Civil Court
of Competent jurisdiction.5
Hence to give jurisdiction to a Magistrate
under section 145 the following are the
essential requirements:
 That there exists a dispute.
 That it is likely to cause breach of
peace.
 That the dispute is concerning land or
water or boundaries thereof and
buildings, markets, fisheries, crops or
5
1996 P.Cr. L.J. 560

3
 other produce of the land and the
rents or profits of such property.
 That the alleged dispossession is
within two months prior to the
initial order passed by the Magistrate,
and
 That it is within the territorial limits
of the Magistrate.

Under section 145 Cr. P. C.

Magistrate of the First Class can take
action when from a police report or other
information received by him, he is
satisfied that a dispute likely to cause a
breach of the peace exists concerning
any immovable property, i.e., land or
water or the boundaries thereof, or
buildings, markets, fisheries crops or
other produce of land, and the rents or
profits of such property, within the local
limits of his jurisdiction.

4
Magistrate taking action in such dispute
shall make a written order stating the
grounds of his being so satisfied and
requiring the parties to attend his Court
within affixed time and put in written
statements of their respective claims as
respects the fact of actual possession of
the subject in dispute.[Section 145(1)].
This order shall be served as a summons
and a copy of it shall be published by
being affixed to some conspicuous place
at or near the subject of dispute. [Section
145 (3)].
The next step for the Magistrate is to
make an inquiry as to possession. He
shall (irrespective of the merits of the
case) 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

5
any (as he thinks necessary, an dif
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. If, however, it appears
to the Magistrate that any party has
within two months next before the date
of such order has been forcibly and
wrongfully dispossessed, he may treat
the party so dispossessed, as if he had
been in possession at such date.
In case of emergency the magistrate may
attach the subject of dispute pending his
decision. [Section 145(4)].
If any party shows that no dispute as
aforesaid exists or has existed, the
Magistrate shall cancel his initial order
and stay all further proceedings thereon
but subject to such cancellation, the
order of the Magistrate initially passed
shall be final. [Section 145(5)].

6
If the Magistrate decides that one of the
parties was or should be treated as being
in possession of the said subject he shall
issue an order declaring such party to be
entitled to possession thereof until
evicted therefrom in due course of law,
i.e., until the question of title is decided
in a Civil Court. The Magistrate shall
further forbid all disturbances of such
possession until such eviction and when
a party has forcibly and been wrongfully
dispossessed within two months next
before the date of the initial order he may
restore possession to it. [Section 145(6)].
When a party to any such proceedings
dies, the Magistrate may cause the legal
representatives of the deceased party to
be made a party to the proceeding and
shall thereupon, continue the inquiry if
any question arises as to who the legal
representative of a deceased party for the

7
purposes of such proceeding is all
persons claiming to be representatives of
the deceased party shall be made parties
thereto. [Section 145(7)].
If the Magistrate is of opinion that any
crop or other product of the property, the
subject of dispute, is subject to speedy
and natural decay, he may make an order
for its custody or sale and upon the
completion of the inquiry, make suitable
order for the disposal of such property or
the sale proceeds thereof. [Section
145(8)].
The Magistrate may, if he thinks fit, at
any stage of the proceedings under
section 145 on the application of either
party, issue a summons to any witness
directing him to attend or to produce any
document or thing. [Section 145(9)].
If the Magistrate decides that none of the
parties was then in such possession, or is

8
unable to satisfy himself as to which of
them was then in such possession of the
subject of dispute, he may attach it until
a competent court has determined the
rights of the parties thereto or the person
entitled to possession thereof.

WHAT IS THE DIFFERENCE

BETWEEN EXERCISE OF POWER
UNDER SECTION 107 AND 145 CR.
P. C.?

The exercise of the power under section

145 Cr. P. C. is mandatory.
The difference between section 107 and
145 Cr. P. C. is that section 107 does
deal with the prevention of breach of
peace but it is altogether general in
nature whereas section 145 Cr. P. C.
deals with a specific case in which a
dispute is likely to cause breach of peace

9
is alleged to exist, among others,
regarding immovable property. In this
view section 145 Cr. P. C. which is
special ion nature, would apply to the
case involving dispute as to possession
of immovable property in preference of
section107 Cr. P. C.

WHAT IS THE DIFFERENCE

BETWEEN EXERCISE OF POWER
UNDER SECTION 112 AND 145 CR.
P. C.?

Section 112 Cr. P. C. relates to security

for keeping peace and for good
behaviour which in fact touch the liberty
of a person and smack of being punitive

10
while nature of proceedings under Ch.XI
relates to avoidance of nuisance or
apprehended danger and smack of being
civil nature. Former relates to
apprehension of person and latter to the
attachment of property. 6

If there is no longer any likelihood of a

breach of the peace in regard to the
subject of dispute, the Magistrate may
withdraw the attachment at any time
[Section 146(1)].
When the Magistrate attaches the subject
of dispute, he may, if he thinks fit and if
no receiver of the property, the subject of
dispute, has been appointed by the Civil
6
1993 P. Cr. L.J. 939
.

11
Court, appoint a receiver thereof, who,
subject to the control of the Magistrate,
shall have all the powers of a receiver
appointed under the Code of Civil
Procedure, 1908.
Provided that, in the event of a receiver
of the property, the subject of dispute,
being subsequently appointed by any
Civil Court, possession shall be made
over to him by the receiver appointed by
the Magistrate, who shall thereupon be
discharged.

WHAT IS THE OBJECT OF

ENACTMENT OF SECTION 145 CR.
P. C.?

The object of enactment of section 145

Cr. P. C. is to prevent breach of the
peace and not giving one party an
advantage over another party by driving

12
the other to prove his title in the Civil
Court.
Section 145 Cr. P. C. can be invoked in
cases where the contesting parties are not
in actual possession at the time of the
preliminary order but have bona fide
rights to succeed to the property and
there is a serious danger of a breach of
the peace if action under the section is
not taken. The inquiry under this section
is in its nature a summary one. The
proceedings are only temporary,
designed to prevent a breach of the peace
and are subject to decision of the Civil
Courts. Section 145 Cr. P. C. is
concerned with the person in actual
possession and persons who are likely to
create a breach of the peace. It has been
enacted with the object of ascertaining
who was in possession of the property
either on the date on which breach was

13
likely to occur or, where one party has
been forcibly and wrongfully
dispossessed, witrhi9n two months of
that date. The Magistrate being
concerned only with the question of
actual possession, he must determine that
question of the right to possession.

LIKELIHOOD OF BREACH OF
PEACE IS ESSENTIAL FOR A
PROCEEDING UNDER SECTION
145CR. P. C.

It is essential for a proceeding under

section 145 Cr. P. C. that the Magistrate
should be satisfied , either from a police
report or from other information, that
there is a likelihood of a breach of the
peace, the mere fact that there is a
dispute concerning land is not sufficient

14
by itself to give him jurisdiction. Section
145 was enacted in order that the
Magistrate may prevent a breach of the
peace
And that the fact that there is a danger of
a breach of the peace must be put in the
forefront of his proceedings and he must
give the parties notice that it is to prevent
a breach of the peace that he is taking
action under section 145 Cr. P. C.
He has no jurisdiction in a matter of
dispute relating to immovable property,
which primarily appertain to a Civil
Court unless he is fully satisfied that
there is a danger of a breach of the peace.
The basis of the proceedings is the
likelihood of a breach of the peace.
Therefore, if the Magistrate is of the
opinion that there is no likelihood of a
breach of the peace he will not direct the

15
issue of a proceeding under section 145
Cr. P. C.

WHAT IS PRELIMINARY ORDER

AND WHAT IS A FINAL ORDER?

The preliminary order sets the machinery

of law into motion.
The final order declares which party is in
possession and states that such party will
continue in possession until evicted by a
decree of Civil Court and forbids all
disturbance of such possession. Both
preliminary and final orders are passed
by the same Magistrate. Both
preliminary and final orders are passed in
exercise of the powers vested in the
Magistrate under section 145 Cr. P. C.
However, the preliminary order is under
sub-section (1) while final order is under
sub-section (4) of section 145 Cr. P. C.

16
WHAT IS THE PROCEDURE TO BE
ADOPTED IN CASE OF DISPUTE
CONCERNING RIGHTS OF USER
OF IMMOVABLE PROPERTY?

Section 147 reads as under:

147. DISPUTES CONCERNING

RIGHTS OF USE OF IMMOVABLE
PROPERTY ETC. (1) Whenever any
Magistrate of the first class is satisfied ,
from a police report or other information,
that a dispute likely to cause a breach of
the peace exists regarding any alleged
right of user of any land or water as
explained in section 145, sub-section (2)
whether such right be claimed as an
easement or other wise, within the local
limits of his jurisdiction, he may make an
order in writing stating the grounds of

17
his being so satisfied and requiring the
parties concerned i such dispute to
attend the court in person or by pleader
within a time to be fixed by such
Magistrate and to put in written
statements of their respective claims, and
shall thereafter require in to the matter
in the manner provided in section 145,
and the provisions of that section shall as
far as may be, be applicable in the case
of such inquiry.
(2) If it appears to such Magistrate that
such right exists he may make an order
prohibiting any interference with the
exercise of such right.
Provided that no such order shall be
made where the right is exercisable at all
times of the year, unless such right has
been exercised within three months next
before the institution of the inquiry, or
where the right is exercisable only at

18
particular seasons or on particular
occasions unless the right has been
exercised during the last such seasons or
on the last of such occasions before such
institution.
(3) If it appears to such Magistrate that
such right does not exist, he may make
an order prohibiting any exercise of the
alleged right.
(4) An order under this section shall be
subject to any subsequent decision of a
Civil Court of competent jurisdiction.

WHAT ARE RIGHTS OF USER OF

LAND OR WATER?

Much law has developed by the judicial

precedents of the Superior Courts on this
point. Thus the following are rights of
user of land and water:

19
  A right to enter a place of public
worship and to worship therein.7
 A right to enter a mosque and
officiate as Kazi therein.8
 A right to bury the dead in the burial
ground.9
 A right to erect a bund.10
 A right to go upon the land of another
to collect gratuities for a certain
religious purpose.11
 A right of way absolute or limited by
exclusion of vehicular traffic.12
 A right to lie warps in the street.13
 A right to let off water by its natural
course.14
 A right to fish.15

7
AIR 1951 Calcutta 93 (FB).
8
29 Madras 237.
9
AIR 1928 Madras 5982.
10
AIR 1930 Calcutta 59.
11
AIR 1917 Calcutta 256.
12
AIR 1921 Patna 227.
13
AIR 1919 Madras 812.
14
12 Cr. L. J. 319 (DB) Calcautta.
15
AIR 1934 Patna 86.

20
WHAT ARE NOT RIGHTS OF
USER OF LAND OR WATER?

The following are not rights of user of

land or water according to superior
courts judgments:

 A right of privacy.16

WHAT IS LOCAL INQUIRY AS

ENVISAGED IN SECTION 148

A property is situated at some place and

its demarcation or knowing its
boundaries with exact measurement
identifies it well.

16
14 Criminal Law Journal 400 (DB) Bombay.

21
The inquiry under this section (section
148) is to be conducted by a Magistrate.
It is not merely an executive act. It is a
judicial act and the Magistrate must give
notice to the parties, examine witnesses
and then prepare a report. This report of
the Magistrate who holds the inquiry
may be read as evidence. It is a matter of
common sense that report will be in
favour of a party and adverse to the other
party. The part affected by the report
should be given an opportunity of
rebutting it and for that purpose both the
parties should be given copies of the
report. 17
If the evidence taken by the Magistrate at
the inquiry is acted upon, with object
from the parties, the Magistrate does not
act without jurisdiction. At the most it
amounts to irregularity which is curable
17
AIR 1918 Madras 791 (DB).

22
under section 537 Cr. P. C. The authority
is available in AIR 1918 Madras 791
(DB).

CAN A MAGISTRATE DEPUTE A

SUBORDINATE OFFICIAL FOR
MEASUREMENTS ETC? IF SO
WHETHER HE WILL RELY ON IT
AND MAKE HIS REPORT OR HE
WILL HAVE TO CONDUCT HIS
INQUIRY STILL?

The Competent authority to depute a

Magistrate to make the inquiry under
section 148 (1) Cr. P. C. is the Sessions
Judge. Having so appointed a Magistrate
as the Inquiry Officer the Session Judge
may furnish him with such instructions
as may seem necessary for his guidance.
The Sessions Judge may also declare by
whom the who9le or any part of the

23
necessary expenses of the inquiry shall
be paid.

Where a kanungo or amin or some other

person is deputed by the Magistrate to
conduct measurement of the land in
dispute his report of such measurement
does not automatically form part of the
record. In order that it may form part of
the record so as to be admissible under
Article 153 of the Qanun-i-Shahadat
Order 1984 (section 157 of the old
Evidence Act, 1872) he must go into the
witness box and give his deposition. On
receipt of the report the deputing
Magistrate must hold further inquiry.18
He cannot base his order merely on the
report: he must take evidence tendered
by the parties. And if no evidence is
tendered by the parties, the Magistrate
18
AIR 1918 Madras 791 (DB).

24
may act upon the report alone. The
reason is that he has given the full
opportunity to both the parties to tender
the evidence they want to tender and
despite this opportunity the parties do not
tender the evidence the Magistrate is not
to remain on their sweet will and he
should perform his duty lawfully.

COSTS IN RESPECT OF
PROCEEDINGS UNDER CHAPTER
12 CR. P. C.

The costs in respect of proceedings under

ch.12 can be awarded under section
148(3) Cr. P. C. 19

Bibliography

19
32 Calcutta 602 (DB).

25
 1. Constitution of Islamic Republic
of Pakistan, 1973.
2. Qanun-i- Shahadat Order, 1984
3. Pakistan Pena Code, 1868.
4. Code of Criminal Procedure, 1898
5. Criminal Trial, [Justice ® Dr.
Munir Ahmad Mughal], Muneeb
Book House, Lahore, 2011.
6. AIR
7. PLD.

26

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