2012 PLP 2004 (YLR)

SYED SAJJAD HASSAN SHAH, J.

Through this petition, petitioner has called in question the judgment/order dated 8-6-2011, passed by the learned Additional Sessions Judge-I, Bannu, vide which, his complaint under sections 3, 4 and 7 of the Illegal Dispossession Act, 2005, was dismissed.

2. Briefly stated the facts of the case are that petitioner filed a complaint under sections 3, 4 and 7 of the Illegal Dispossession Act, 2005, against respondent NQ.1, in respect of a house/ building constructed over an area of 02 Kanals, 1.1 marals, situated in Khasra No.887, bearing Khata No.1226/3424. It is averred in the complaint that respondent, who is the brother of the petitioner, has forcibly occupied the possession of the disputed house, in absence of the petitioner, when he was in Sarai Naurang, in connection with his business. This complaint was dismissed by the learned Additional Sessions Judge, being not maintainable. Hence, this petition.

3. Learned counsel for the petitioner contended that the learned Additional Sessions Judge has erred in law while dismissing the complaint. He further contended that it has been brought on record that the petitioner and the respondent are brothers inter se, however, the disputed house has been partitioned and each one of them, was in possession of his respective share. He further contended that respondent illegally and forcibly took over the possession of the suit property in absence of the petitioner and in this regard the Court below has failed to advert to the allegations levelled in the complaint that petitioner was forcibly dispossessed by the respondent. Thus, the impugned order is suffering from legal infirmities and is liable to be declared as illegal and void.

4. Arguments of the learned counsel for the 'petitioner heard and record carefully perused.

5. The available record shows that the petitioner has admitted in his complaint that both the parties are co-shares in the suit Khata. He has not averred in his complaint that the joint property was duly partitioned and both the parties are occupying their respective possession. In absence of any such declaration in the complaint, it would be difficult to determine that petitioner was in exclusive possession of the suit house. In his complaint, the petitioner has also made a reference to an arbitration award, which was -not made as rule of the Court and the same was dismissed upto the apex Court. The petitioner has not asserted that his real brother i.e. the respondent is a land grabber or belongs to land Mafia or Qabza group. The very intention of the Illegal Dispossession Act, 2005, is to provide remedies to the persons who have been illegally and forcibly dispossessed by a class or group of persons, who are having antecedents, as mentioned above. The cases or disputes over the possession, for example, between the co-snares or the persons having the right to the property or claiming the possession under certain valid title, cannot be stamped as person of the above antecedents. Moreover, the dispute is purely of civil nature and the petitioner can avail his remedy from the Court . of competent jurisdiction. The petitioner has not mentioned in his complaint as to when he was dispossessed from the disputed house, inasmuch as, he has neither given the boundaries of the house, the subject matter of the complaint, nor has annexed its sketch nor any revenue record with the complaint. Moreover admittedly, as stated herein above, that the parties are co-sharers in the disputed property. It is well-settled principle of law that all the co-sharers enjoy one and the same status. None of ' them can claim as to have been standing on high pedestal. It is also set a rest that the possession of one co-sharer enures for the benefit of all the co-sharers and even if one of them is in -possession of the joint property, he would not be considered as exclusive owner of the said portion of the land, because till the time, the property, remains in joint ownership, all the co-sharers are deemed to be the owners in each and every inch of the property, unless legally partitioned by metes and bounds. "In this regard, if any criminal complaint would be filed, certainly, it would amount to frustrate the very purpose of the Act ibid, which provides speedy remedy against the grabbers. Thus, involving any co-sharer in such like complaint, would amount to defeat the very intention of the law maker, as envisaged in the Illegal Dispossession Act, 2005. Besides that, even if assuming for a moment that a person is dispossessed from his property, he must have to bring some proof on record in order to show his prima facie possession and illegal dispossession thereof, otherwise, the complainant is not liable to be entertained as it would not covered by the provision of the law.????? -

6. In view of the above discussion, the petitioner has failed to make out the case falling within the purview of the Illegal Dispossession Act, 2005. He has failed to make out any prima facie case against the respondent. Resultantly, this petition being merit less is hereby dismissed in limine. M.W.A./196/P???????????????????????????????????????????????????????????????????????? Petition dismissed.