2019 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The applicant has filed a complaint under Illegal Dispossession Act, 2005 in respect of a piece of land on which the applicant is claiming his title of ownership and alleging that a considerable portion of the same was illegally occupied by the respondent No.

2. The learned trial Court (Additional Sessions Judge-II, Thatta) did not take cognizance on such complaint and dismissed the same through the impugned order dated 25-11-2016. As such the applicant challenged the verdict of trial Court through the instant criminal revision application.

2. The compendium of the complaint filed by the applicant is that his father (late) Khuda Bukhsh has purchased the subject property from one Ladho Mal through the registered sale deed for a consideration of Rs. 20.000/-. Allegedly, on the basis of the said sale deed, the piece of land (plot) was mutated in the name of the Father of applicant and he was in possession of the said plot. The father of applicant expired in 1982 leaving behind applicant and his two other brothers. According to applicant, in the year 1986 because of the riots of MRD Movement, the records of City Survey was burnt and the then Asstt. Commissioner was appointed as the enquiry officer for reconstruction of the record. The applicant and his brothers tried to get mutated the plot in their names but the same could not be done and authorities kept them on false hope. The applicant then obliged to file a civil suit, which was decreed in his favour ex parte and on the basis of the decree, the applicant succeeded in getting the plot mutated in his name and in the name of his two brothers. It is also alleged that meanwhile the respondent No. 2 occupied some portion of the land of applicant. As soon as, the applicant came to know about the illegal occupation of his plot by the respondent No. 2, he filed a complaint under Illegal Dispossession Act. The respondent No. 2 filed an application under section 12(2), C.P.C. but the same was dismissed and even Revision Application against the order of trial Court was also dismissed. The applicant alleged that he was not satisfied with the Presiding Officer of the trial Court on account of her relationship with the respondent No. 2 and he filed a transfer application against her but his transfer application remained unfruitful. Ultimately, the learned trial Court passed the impugned order.

3. The learned counsel for the applicant argued the case at length. The gist of his arguments is that the applicant being the co-owner of the land in question has full right to proceed against the respondent under the provision of the Illegal Dispossession Act, 2005. According to him, the land was purchased by the father of applicant and was mutated in his name but on account of the destruction of the record, the same could not be mutated in the name of applicant and his brothers until they succeeded in an ex parte civil suit. He submits that the respondent has encroached upon the land of applicant in two phases and now a considerable portion of the land is in his possession. In response to a query, he submits that he is not in possession of the documents showing the ownership of the person from whom his father has purchased the land in question. However he emphasised that not only the suit was his favour but also an application under section 12(2), C.P.C. was dismissed and even the revision filed against the said order was also dismissed, as such the right of the applicant is established on the said land. However, he admits that after the dismissal of the application and revision of respondent, now the government has filed application under section 12(2), C.P.C. which is spending.

4. On the other hand, the learned counsel for the respondent opposed the instant criminal revision by submitting that the applicant has no locus standi regarding the land in question and they are not the owner of the same. He submits that actually the land in question is an Asaish land on which the applicant has no right at all.

5. The learned DPG submits that the land in question is actually belonged to government and the applicant has initiated proceedings based on the false and fabricated document. He submits that the decree was obtained by the applicant in collusion with the concerned DDA. He submits that neither the applicant nor the respondent has any right on the said land and the mutation was made in the name of applicant only to honour the decree of court, which is now assailed under 12(2), C.P.C. by the government.

6. I have heard the arguments and have gone through the relevant record. It is the case of the applicant that he is the lawful owner of a piece of land and a portion of the same land is under illegal occupation of the respondent. The applicant has filed a complaint under the Illegal Dispossession Act, 2005 but the same was dismissed by the trial Court. While dismissing the complaint, the trial Court came to conclusion that as per report of City Surveyor, no one is in possession of the disputed plot; therefore, complaint is not maintainable. It is worth noting that the report of SHO is also not in favour of the applicant as it says that the area claiming by the applicant is in possession of respondent since long. The applicant has stated that the property was mutated in the name of applicant and his brothers under a decree of the court but nowhere it is mentioned in the complainant or in application that any demarcation has ever been held to ascertain in the piece of land claimed by the applicant.

7. Another aspect of the case is considerable. The report of Mukhtiarkar/City Survey Officer, Thatta not only belies the contention of the applicant regarding illegal occupation of the piece of land claimed by him but also indicates that originally the land belonged to government. It is also worth noting that the said officer of government has clearly mentioned that the applicant has got mutated the government land under the order/decree passed by the Senior Civil Judge, Thatta in F.C. Suit No. 80 of 2007. It is also important to note that the said decree was actually obtained against government and the same is an ex parte decree. The counsel for the applicant himself has admitted that now the government has filed an application under section 12(2), C.P.C., which is pending adjudication.

8. In view of the above position placed before the trial Court by the concerned officer of the government, there remained nothing in the hands of the applicant/complainant to proceed with a complaint under Illegal Dispossession Act, as such the complainant of the applicant was rightly dismissed and the same does not require any interference of this Court in its revisional jurisdiction.

9. Before parting, I would like to say something regarding the alarming and disastrous trend in the society through which the valuable government land is being usurped by preferring collusive suits in which sometimes the law officers of government play improper role. It has been observed that after filing some objections or a very vague Written Statement, the District Attorney or the Deputy District Attorney avoids to appear and thus the plaintiff succeeds in getting a decree on the ground of a vague Written Statement which, in some cases, amounts to admission on the part of government. It has also been noticed that in many cases valuable government land is being usurped under the garb of ex parte decrees, which are passed due to incompetency of government lawyers or wilful act of the public functionaries. I am of the view that such act of the government lawyers and other public functionaries speaks volumes about their integrity and efficiency. It is therefore directed that the presiding officers of all the civil courts should be very careful in this respect and do not pass an ex parte judgment and decree in a mechanical fashion. It is further directed that in future all the presiding officers of civil courts in the province should furnish the copies of such ex parte matters, to the concerned Deputy Commissioner and the Solicitor Office to enable them to take appropriate action against the responsible law officers and other government officers. The learned MIT-II is directed to circulate this order amongst all the District Judges in the province. He is also directed to send the copies of this order to the learned Solicitor and Law Secretary for information and compliance.

10. Criminal revision is dismissed. MH/I-29/Sindh Revision dismissed.