2017 PLP 42 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application, applicant Ali Murad alias Jameel has impugned order dated 17.11.2015, passed by the Court of learned III-Additional Sessions Judge, Khairpur, whereby complaint No.37 of 2014, titled: Ali Murad alias Jameel v. Mohammad Juman and others, filed by applicant under sections 3 and 4 of the Illegal Dispossession Act, 2005, was dismissed.

2. Relevant facts spelt out from instant revision application are that agricultural land bearing Survey Nos.340 (2-30 acres), 344 (2-35 acres), 342 (1-34 acres), 357 (1-22 acres), 522 (0-9 acres), 725 (1-00 acres), 341 (3-33 acres) originally belonged to Ghulam Mohammad Panhyar, father of the applicant. About three years prior to the birth of application, in year 1970, the father of applicant sold out the said land to his sons Ali Mohammad, Ali Murad, his daughter Mst. Raheeman and his wife Mst. Phatul through oral statement before Mukhtiarkar (Revenue), Taluka Kot Diji and such entry was maintained in the record of rights. It is further averred that brother and sisters of applicant, have passed away leaving behind the applicant as their legal heir, hence he became the owner of the said land, and he looked-after and cultivated the land peacefully. It is further asserted that on 15.01.2014, at about 4:00 p.m, applicant along with witness Ali Akber Panhyar went to look-after his land and found accused Mohammad Juman, Mohammad Khan, Mohammad Punhal and Bashir Ahmed present there with lethal weapons and they occupied Survey Nos.340 (2-30 acres) and 344 (2-35 acres). Applicant informed the respondents regarding his ownership and possession of the land in question, but they issued serious threats. Subsequently, applicant approached SHO Police Station, Kumb for many times but no FIR was recorded against accused persons, hence instant direct complaint under sections 3 and 4 of Illegal Dispossession Act, 2005.

3. Learned Counsel for applicant contended that applicant being real owner was in possession of the land in question and respondents forcibly dispossessed him without any title over said land; that respondents have managed through unconcerned relatives Revenue Appeals Nos.28 and 29 of 2015, before the Revenue Authorities challenging the entries in favour of applicant; that learned trial Court has not appreciated the material facts as well as documents available on record while passing impugned order whereby direct complaint filed by applicant was dismissed. Learned counsel has relied on the case of Wali Mohammad v. Additional Sessions Judge, Jaranwala, District Faisalabad and 5 others (PLD 2008 Lahore 392), Mohammad Usman S. Memon v. IV Additional Sessions Judge, Hyderabad and 4 others (PLD 2011 Karachi 624), Mohammad Ramzan alias Jani v. Muhammad Aslam and others (2007 PCr.LJ 1784) and Ali Raza v. Haji Mohammad (2010 YLR 1982).

4. While controverting the above submissions, learned Counsel for respondents contended that applicant has managed entries some time before filing of direct complaint only to deprive the legal rights of the respondents as mother of respondent No.1 Mst. Bashiran was daughter of Mst. Rahiman. However, learned Counsel for respondents conceded that Foti Khata was not mutated in the name of Mst. Bashiran, mother of respondent No.1 Mohammad Juman. Learned counsel relied on PLD 2008 Karachi 94.

5. Learned APG did not support the impugned order and also pointed out that parties have yet not filed Civil Suit pertaining to the disputed land, while in both revenue appeals respondents have not been included in the arrayed of respondents; that learned trial Court has erred while dismissing the complaint and also ignored the legal aspect of the controversy.

6. Heard arguments advanced by learned counsel for the parties, supported with case law and perused the material available on record minutely.

7. Perusal of record reflects that there are counter claims of the parties, regarding the dispute over land in question. It is averred that late Ghulam Mohammad had contracted two marriages, and Ali Murad, Ali Madad and Mst. Haleeman were born from his wife Mst. Phatul, while from his second wife Lachmi, one daughter Mst. Rahiman was born and she also given birth to one daughter Mst. Bashiran who is mother of respondent No.1 Mohammad Juman, while there was no entry maintained in the name of Mst. Bashiran, mother of respondents, however, they are claiming their right of ownership in disputed landed property being inherited from the forefathers.

8. During the inquiry, learned trial Court called reports from concerned Mukhtiarkar and SHO. For convenience report furnished by Mukhtiarkar is reproduced as under:-- "Subject: REPORT REGARDING IN CR. COMPLAINT No.37/2014 ALI MURAD PANHYAR V. MOHAMMAD JUMAN, UNDER SECTIONS 3 AND 4 ILLEGAL DISPOSSESSION ACT. "The undersigned has directed to Tapedar of beat to verify the revenue record, visit the site and report in the matter, who has reported that according to entry No.118 of VFF-VII-A(1) Ali Mohammad son of Ghulam Mohammad Panhyar is share holder of 0-40 paisa, (2) Ali Madad son of Ghulam Mohammad Panhyar share holder of 0-40 paisa, (3) Mst. Raheema D/o Ghulam Mohammad share holder of 0-10 paisa and (4) Mst. Fattul D/o Ghulam Mohammad share holder of 0-10 paisa bearing S. Nos. 340, 342, 357, 522, 725, 341 and 344, total area 14-03 acres situated in deh Baga Dera, Tapa Nasir Fakir, Taluka Kotdiji. Tapedar further reported that S.No.340/2-30 acres under possession of Mohammad Khan area 1-00, Punhal Panhyar area 1-00 acre and Ghous Bux area 0-30 guntas and S.No.344/2-35 acres under the possession of Mohammad Juman are 1-35 acres standing crop date-palm garden and Ali Gul Panhyar are 1-00 acres cultivating cotton crop." Likewise the operative part of report submitted by the SHO is reproduced as follows:- "that agricultural land of Ali Madad, Ali Mohammad, Ali Murad, Mst. Haleeman and Mst. Phattul is situated in deh Bago Daro and pass book is in the name of Ali Madad who had died. From said land, 1-25 is in possession of Mohammad Juman, 1-10 is in possession of Khan Mohammad, whereas 30 ghunta is in the name of Mohammad Punhal and there standing wheat crop, while 10 ghunta is in possession of Ghulam Akber. Per earlier report of Mukhtiarkar Kotdiji dated 01.07.2014, submitted before the Court, the land in question is the solely right of applicant Ali Murad Panyar." The prayer clause of Revenue Appeal No.28 of 2015 filed by Ali Gul and another before Additional Commissioner is reproduced as under:-- "The appellants pray that this Honourable Court may graciously be pleased to set-aside the void mutation entry No.46 dated 01.09.2009 and direct the respondent No.6 to change Foti Khata of deceased Ali Madad in favour of his legal heirs in Jalsa-e-Aam according to law, which will meet the ends of justice." The prayer clause of Revenue Appeal No.29 of 2015 filed by Ali Gul and another before Additional Commissioner is reproduced as under:- "The appellants pray that this Honourable Court may graciously be pleased to set-aside the void mutation entry No.45 dated 01.09.2014 for S.Nos. 340, 341 and others total area 5-26 acres situated in Deh Bago Daro, Taluka Kotdiji and direct the respondent No.6 to change Foti Khata of deceased Ali Muhammad in favour of his legal heirs in Jalsa-e-Aam according to law, which will meet the ends of justice."

9. Admittedly, Ali Gul and another have filed Revenue Appeals Nos. 28 of 2015 and 29 of 2015 against applicant and others, while respondents are not parties to those appeals nor any relief has been sought in favour of respondents, thus they are strangers to both the revenue appeals and final result of said appeals would not be benefited for them, hence contention raised by the respondents regarding pendency of revenue appeals has no nexus with instant criminal revision application nor same would affect the final outcome of direct complaint. Admittedly, there is neither any Civil Suit nor Revenue Appeal pending before any Civil Court or Revenue Authorities filed by respondents for determination of their legal rights over the disputed landed property, thus respondents on the basis of above referred revenue appeals could not resist the adjudication of the direct complaint filed by applicant purely on the allegations of illegal dispossession before the competent Court.

10. Indeed, applicant is claiming his ownership over the land in dispute on the basis of revenue record which has been verified and confirmed by the revenue authorities and he has also disclosed specific date and time for his alleged dispossession, while on other hand respondents have failed to produce any revenue record establishing their title or ownership over the land in question. However, learned trial Court has ignored the reports as well as the entries maintained in revenue record while passing impugned order. In absence of any Civil Suit filed by the respondents seeking declaration of their rights or title over disputed property, the claim of ownership of applicant regarding the land in question supported by the revenue record, could not be discarded merely on the grounds that respondents are claiming their right of ownership over the land in dispute being the legal heirs of their mother Mst. Bashiran who was entitled for her share in inherited property, nevertheless, there is no entry or mutation of khata in her name in the revenue record. Admittedly, neither land in question was mutated in the names of respondents in revenue record nor they have furnished any justification for occupying the same in their possession. Thus applicant being the owner of the inherited immoveable property could not be deprived from his right to sue for restoration of his landed property in view of the Illegal Dispossession Act, 2005. It is well settled that all cases of illegal occupants without any distinction would be covered by the Illegal Dispossession Act, 2005, and there is no embargo in the Act for adjudication of the cases of co-owners of the joint immoveable property or co-sharers in inherited and ancestral immoveable property. In order to constitute an offence under Illegal Dispossession Act, 2005, complainant is bound to show that he is actual owner or was in lawful possession of land in question and accused had occupied the disputed property without any lawful authority and dispossessed the complainant illegally and other than due course of law. It has been also established by the honourable Supreme Court that Illegal Dispossession Act, 2005, is a special enactment promulgated to discourage the land grabbers and to protect the rights of owners and the lawful occupants of the property, as against the unauthorized and illegal occupants. In the case of Rahim Tahir v. Ahmed Jan (PLD 2007 SC 423), the honourable Supreme Court has observed as follows:-- "Expressions "Grab, control or occupancy used in section 3 of Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of Act, rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums." In the case of Inyatan Khatoon v. Muhammad Ramzan (2012 SCMR 229), the honourable Supreme Court has observed as follows:-- "Illegal Dispossession Act, 2005, is a special enactment promulgated to discourage land grabbers and to protect right of owners and lawful occupants of property as against unauthorized and illegal occupants. All cases of illegal occupants without any distinction are covered by Illegal Dispossession Act, 2005. High Court had misdirected itself by holding that word "owner or occupier" defined in Illegal Dispossession Act, 2005, did not include more than one owner and or occupier, meaning thereby that if property was jointly owned or jointly occupied by complainants they could not approach Trial Court by filing complaint under Section 5 of the Act. Order of taking cognizance by Trial Court was within the parameters of this Act, and introducing procedure under Criminal Procedure Code, 1898, for proceeding with a private complaint after re-examining the complaint under Section 200, Cr.P.C. was foreign to the language of this Act. Supreme Court set aside the judgment passed by High Court and remanded the matter to Trial Court for decision in accordance with law. In the case of Muhammad Riaz Ahmed Khan v. Imran Abdullah and others (2009 PCr.LJ 491), it was observed as follows:-- "Respondent tenant, after having been lawfully ejected from the shop of petitioners, had again taken over the possession of shop illegally by break open its lock. Application filed by petitioner under Section 3 of Illegal Dispossession Act, 2005, against respondents had been dismissed by Sessions Court observing that Illegal Dispossession Act was meant for only land grabbers and was not applicable to any other sort of dispossession. Sessions Court had failed to appreciate the meaning of the words "owner or occupier" given in the Act and had further failed to go through Section 3 of the Act. Person not in legal possession would be possessing the property illegally and would fall within the ambit of the Act. Such type of activities as complained by petitioner, if allowed, would deprive the orders or writs issued by the Courts of their sanctity and immediately after eviction of a person through legal process, he would re-occupy the same property. Impugned order was set-aside and the case was remanded to Sessions Judge to proceed with the matter on merits."

11. Indeed, applicant is lawful owner of the property having title documents in his name and said factum has been established during inquiry conducted by the learned trial Court through concerned SHO as well as Mukhtiarkar that the land in dispute belongs to applicant being the inherited property of his forefathers which is supported with the entries made in concerned relevant record of rights. Applicant claimed to have been dispossessed from property in question by respondents but learned trial Court instead of deciding the complaint on merits, had simply dismissed his complaint on surmises and conjectures without complying with other pre-requisites, despite of the fact that entries of land in dispute mutated in his name by the revenue authorities, have not be declared as illegal or cancelled by the Civil Court or any other competent forum.

12. Considering the above facts and circumstances, impugned order dated 17.11.2015, passed by the Court of learned III-Additional Sessions Judge, Khairpur, being contrary to the provisions of Illegal Dispossession Act, 2005, is set aside and matter is remanded to the trial Court to decide the complaint strictly on merits after affording opportunity to the parties for adducing their evidence supported with documents. In view of above terms, instant criminal revision application stands disposed of. SL/A-71/Sindh Revision allowed.