MUNAWAR BHAT Vs. GULLA SHAH

JUDGEMENT

(1.) THIS is a reference made by the District Magistrate. Anantnag, dated 20-10-1965, whereby he has recommended quashing of the order of attachment passed by the Munsiff Magistrate. Anantnag, in proceedings taken by him on an application made before him under Section 145. Cr. P. C.

(2.) I have heard the learned Counsel for the parties and have perused the entire record both of the learned D. M. and that of the Munsiff Magistrate The learned D. M. has more or less made a comment on the merits of the case His finding is that the non-applicant Munwar Bhat has been shown in possession of the suit land from 1960 to Rabi 65 and therefore the Magistrate, according to him, has passed orders without having regard to the factual possession of the land in dispute at site. The learned D. M's recommendation on the grounds be has mentioned in the reference cannot be accepted, as that would be making some positive reflections about the merits of the case which cannot be done at this stage of the proceedings. But nonetheless in my opinion not only the attachment order but the entire proceedings taken under Section 145 shall have to be set aside.

(3.) THIS case presents a very interesting and curious reading. An application under Section 145 Cr. P. C. , pertaining to land measuring 11 kannals and 4 marlas under survey No. 813 situate in Verinag Tehsil, Anantnag. seems to have been written on 11th September, 1965. Along with this application there is another application for attachment of the said property under the same section supported by an affidavit. These applications were written on behalf of Gulla Shah, the petitioner before the trial court The record of the case does not at all indicate on which date the applications were presented and before whom. I am not sure whether the Munsiff Magistrate at Anantnag has the jurisdiction to entertain the applications direct; at any rate the applications do not seem to have been transferred to him by the ADM of that place. There is, however, an initial of two letters, which reads as VS. on the application but is without any date. On the application for attachment the word "attach" has been written and again the same initials which look like VS are affixed to it but these initials are also without date. The only document presented with the application seems to be a mutilated copy of an order of the DC Collector, Anantnag, dated 10th December 1963. This copy has marginal notes and certain under-linings. By whom the marginal notes have been written and the portions underlined one cannot say. Then there is the statement of the applicant recorded by some clerk of the court. This statement bears the date 11-9-1965. There is an order which perhaps purports to have been under Section 145, Cr. P. C. , drafted by another clerk. It has been stated before me that there is nothing in the handwriting of the learned Magistrate except the word 'attach' on the attachment application and the hieroglyphic initials which on the application read as VS and on the so called preliminary order read as V Shy. 1 am told these are the initials or signatures of the then Munsiff, Anantnag, Mr. Mohd. Shall.