2015 PLP 1782 (MLD)

AMIN-UD-DIN KHAN, J.

Through this ICA the appellant has challenged the judgment dated 13-5-2010 passed by learned Single Judge in Chamber in Writ Petition No. 21 of 2009 whereby writ petition was dismissed. In the writ petition the appellant has challenged the order of acquittal passed by learned Additional Sessions Judge dated 13-11-2008 in a complaint filed by him under section 3 of the Illegal Dispossession Act, 2005.

2. Learned counsel for the respondents informs that respondent No.1 has passed away during the pendency of this appeal, therefore, to the extent of respondent No. 1 this appeal is abated.

3. Learned counsel for the appellant argues that learned trial court fell in error while dismissing the complaint on the basis that a civil suit was filed previous to filing the complaint under section 3 of the Illegal Dispossession Act of 2005; that learned trial court has misinterpreted the statement of PW-3 Ashiq Hussain, Patwari and further that illegally ignored the report produced by PW-4 Saeed Ahmad, AS1 as Exh.PF, therefore, states that the findings recorded by the learned trial court are against the record; that learned Single Judge in Chamber while deciding the writ petition has also not considered and interpreted the evidence in accordance with law, therefore, prays for acceptance of appeal and setting aside the orders passed by both the courts below and for conviction of the respondents in a complaint under section 3 of the Illegal Dispossession Act of 2005.

4. On the other hand, learned counsel for the respondents as well as learned A.A.G. has vehemently opposed the arguments advanced by learned counsel for the appellant on the ground that even the statement of Patwari is against the stand taken by the appellant; that the alleged "Ehata" falls in Khasre No.7/26, which is part of a joint Khata; that Khasra No. 7/11 is recorded agricultural land; that Patwari admitted that he has prepared the documents in contradiction with "Aks Shajra Parcha" and further that the stand taken by the complainant in his complaint is clearly in contradiction to the stand taken by him in his suit which was previously filed. States that when the legislature has not given right of appeal against the dismissal of the complaint under Illegal Dispossession Act, 2005, constitutional jurisdiction as well as this appellate jurisdiction cannot be exercised in routine as an appeal. Further relied upon "Habibullah and others v. Abdul Malian and others" (2012 SCMR 1533) to argue that the complaint can be filed against "Qabza Group" and not against the joint or adjacent owners.

5. We have considered the arguments advanced by learned counsel for the parties as well as judgments passed by both the courts below and law cited by learned counsel for the respondents.

6. So far as findings on the basis of facts and documents are concerned, same are in accordance with the record available on the file produced by the parties. Learned counsel for the appellant frankly admitted that the pleadings in a civil suit filed on behalf of the appellant are faulty one and the learned counsel who has drafted the suit has drafted something against the claim of the appellant. We have noticed that it seems to be a case of encroachment or demarcation. When in the adjacent Khasra No. 7/26 admittedly the appellant as well as respondents are the joint owners, which relates to "Abadi Deh" and "Ehata Jaat" are there. The documentary evidence produced by the appellant does not show that Ehata in question was in existence over Khasra No. 7/11. Even the witnesses produced by the appellant are not specific about the existence of the Ehata in question at the land exclusively owned by the appellant. In this view of the matter appellant has failed to show any defect in the factual findings recorded by the two courts below. Even we have noticed that there is no allegation against the respondents that they belong to a "Qabza Group" etc. Further we are conscious of the fact that the legislature has intentionally not provided right of appeal against the dismissal of complaint by the learned trial court in a complaint filed under Illegal Dispossession Act, 2005, therefore, the constitutional jurisdiction or the appellate jurisdiction by this Court cannot be exercised in a routine. If it is liberally exercised it will circumvent the intention of legislature which is not permissible under the law.

7. In view of the above, the case law relied by learned counsel for the respondents is fully applicable to the facts of this case. Resultantly, no case for interference by this Court while exercising appellate jurisdiction has been made out, therefore, we see no infirmity or illegality in the order impugned in this ICA, same is dismissed with costs. ZC/M-272/L Intra Court Appeal dismissed.