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Petitioner: BARKATULLAH VS Respondent: MUNSIF KHAN
P L D 1957 (W
P L D 1957 (W. P.) Peshawar 49
Before Habibullah Khan. J
BARKATULLAH and another‑Petitioners
Versus
MUNSIF KHAN and another‑Respondents
Criminal Reference No. 176 of 1956, by the Sessions Judge, Hazara, decided on 16th January 1957.
Criminal Procedure Code (V of 1898),
S. 145--‑Court is concerned only with possession of immovable property and not with questions of title or incidental rights. In proceedings under section 145, Criminal P. C. the Court is concerned only with the question of possession and not of title or other incidental rights as to how, for instance, a wooden spout of a water‑mill should be constructed and what should be its length, such questions are beyond the jurisdiction of a Court acting under section 145 Criminal P. C.
Abdul Rashid for Petitioners.
Muhammad Younas for Respondents.
Additional Advocate‑General for the State.
JUDGMENT
HABIBULLAH KHAN, J.‑--This is a reference by the Sessions Judge Hazara, whereby he has recommended the vacation of an order passed by a Magistrate under section 145, Criminal P. C.
It is clear from the record that the petitioners are in possession of the water‑mills and the trial Magistrate also came to the same conclusion. It is also not disputed that the petitioners are entitled to reconstruct the water‑mills which were washed away by flood water sometime ago.
The order of the Magistrate declaring the petitioners to be in possession of the water‑mills is perfectly proper and legal, but the other part of the order directing them to keep the length of the proposed reconstructed "Nawa" (water spout) at nine feet and no more, is absolutely illegal and beyond the scope of section 145, Criminal P. C. In proceedings under this section the Court is concerned only with the question of possession and not of title or other incidental rights. As to how a wooden spout of a water‑mill should be constructed and what should be its length are questions beyond the jurisdic tion of a Court acting under section 145, Criminal P. C.
Consequently the reference of the Sessions Judge is accepted and the order of the Magistrate directing the peti tioners to restrict the length of the "Nawa" to 9 feet is vacated.
A. H. Petition accepted.