2009 P Cr (PLP)

KAZIM ALI MALIK, J.

Sardar Shah Nawaz Khan, petitioner, filed a complaint under section 3 of Illegal Dispossession Act, 2005 against Malki Aman, respondent No.1, before learned Court of Session, Rawalpindi, which was made over to a learned Additional Sessions Judge, Rawalpindi. It was alleged by the petitioner/complainant that his owned and possessed House No.29-G-48 located in Ghousia Colony, Misrial Road, Rawalpindi had been occupied by Malki Aman, respondent, when he (complainant) had shifted his family to his native village in Azad Jammu Kashmir in last week of March, 2007. The trial Court obtained a police report, which was submitted after an inquiry to the effect that the respondent herein occupied owned and possessed house of the complainant in his absence. The learned Additional Sessions Judge also recorded statement of the petitioner/complainant on oath, examined documents adduced in preliminary evidence and then dismissed the complaint vide order dated 20-2-2008 relying on the case reported as PLD 2007 Lah. 231 with an observation that the Illegal Dispossession Act, 2005 was applicable to dispossession from immovable property only by property grabbers/Qabza group and land Mafia.

2. On 26-2-2008 the petitioner/complainant filed another private complaint against aforementioned Malki Amaan and Niaz Shah, respondents Nos.1 and 2 herein with an allegation in line with that of earlier complaint. The complainant asserted that the private complaint under Illegal Dispossession Act was competent in view of the case-law laid down in 2007 PCr.LJ Lahore 224, 2007 PCr.LJ Lahore 181 and 2007 MLD 1398. The learned Additional Sessions Judge, who previously dismissed the complaint by the petitioner summarily, again turned down his request for summoning the accused with an observation:

"From the perusal of above said case-law, it is evident that in the case-law 2007 MLD 1398, the orders were passed in writ petition and not in a case filed under Illegal Dispossession Act. The case reported in 2007 PCr.LJ 181 (Lahore) was decided on 10-10-2006, the case reported in PLD 2007 SC 423 was decided on 14-11-2006, the case reported in 2007 PCr.LJ 224 (Lahore) was decided on 24-8-2006 whereas, instructions by the Honourable High Court for dealing with the cases of Illegal Dispossession Act were issued on 19-1-2007 in case decided in Writ petition No.11952 of 2006. In these circumstances, the above said case-law referred to by the learned counsel for the complainant have no bearing."

3. Before adverting to merits of the controversy, I find it convenient to brig on record following facts, which are not in dispute or disputable: (i) The house in dispute is exclusively owned by the petitioner/complainant. (ii) The petitioner acquired ownership in the disputed house under registered gift-deed dated 12-11-2003, which still holds the field. (iii) Malki Amaan, respondent No.1 or Niaz Shah, respondent No.2 has got no concern with the disputed house. Till date they have acquired no interest or title in the disputed house by means of any valid document. (iv) Malki Amaan claimed ownership over the disputed house on the basis of an agreement to sell dated 17-1-2007 (photostatic copy marked "A") whereby one Muhammad Iqbal son of Meer Afzal resident of Peshawar Road, Rawalpindi agreed to sell the disputed house to Malki Amaan, respondent, on behalf of its owner Sardar Shah Nawaz Khan, petitioner, after having received sale price of Rs.25,00,

000. The aforesaid Muhammad Iqbal was/is neither owner of the house nor a lawful appointed attorney of the owner to have an authority to enter into an agreement of sale on his behalf or deliver possession of the disputed house to respondent No.1.

4. To a question as to how and with what authority the aforesaid Muhammad Iqbal entered into an agreement of sale on behalf of the petitioner, learned counsel of Malki Amaan, respondent, was left with no other option but to admit and concede that aforementioned Muhammad Iqbal had not been appointed as an attorney by the owner. However, the learned counsel attempted to argue that the petitioner/owner had orally authorized said Muhammad Iqbal to alienate the disputed house. I see no reason to attach an importance to this self-assertion of respondent No.1. It is not understandable as to how Malki Aman, respondent, claimed ownership of the disputed house on the basis of an agreement of sale executed by Muhammad Iqbal, who was/is neither owner nor lawful appointed attorney of the owner. Apparently, Malki Aman, respondent, is an illegal and unauthorized occupant of the house. The law laid down by august Supreme Court of Pakistan in Rahim Tahir v. Ahmad Jan and 2 others PLD 2007 SC 423 was relied upon by the petitioner/complainant before the trial Court. I was shocked to note that the learned Additional Sessions Judge chose to base his decision on a judgment of this Court passed in Writ Petition No.11952 of 2006, which had been overruled. It is not understandable as to why the case-law laid down by the apex Court of the country did not find favour with the learned Additional Sessions Judge. Here I may reproduced in verbatim key lines of the precedent case, referred to above for facility of reference:

"The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. (see Full Bench judgment of Lahore High Court, dated 19-1-2007 reported as PLD 2007 Lah. 231, which has restricted scope of Act only to illegal dispossession by property grabbers, Qabza Group and Land Mafia.). The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises. The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in occupation of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants." It is manifest from a bare perusal of the above said paragraph from the judgment of august Supreme Court that Full Bench judgment of this Court relied by the learned Additional Sessions Judge had been taken into consideration and impliedly overruled.

4. At the cost of repetition I would say that the petitioner/complainant is lawful owner of the disputed house. Respondent No.1 is an illegal occupant of the house as he is not possessed with any document of title. He attempted to justify his illegal possession on the basis of an agreement of sale executed by one Muhammad Iqbal, who is admittedly neither owner of the house nor lawful appointed attorney of the owner. Purpose of the Special Law is to protect rights of possession of lawful owner. The learned Additional Sessions Judge dismissed the complaint by the lawful owner against unauthorized occupant of the house summarily, arbitrarily and without application of judicial and legal mind. In this view of the matter the impugned order being illegal and offensive A to the case-law laid down by the apex Court cannot be allowed to hold the field.

5. For what has been stated above, I accept this petition with cost and remand the complaint case to the learned Additional Sessions Judge, Rawalpindi for its decision on merits in accordance with law.

6. Before parting with this order it is made clear that the observations by this Court in the preceding paragraphs being result of tentative assessment of the material laid before this Court by both sides would not adversely affect the case and cause of either side before the trial Court. M.H./S-18/L Case remanded.