2019 PLP 2025 (YLR)

ABDULLAH BALOCH, J.

Though this petition, the petitioners have assailed the order dated 10th November 2018 ("the impugned order") passed by learned Sessions Judge Mastung ("the trial Court"), whereby the application under Section of 7 of Illegal Dispossession Act, 2005 filed along with main complaint under Sections 3, 4 of Illegal Dispossession Act, 2005, was allowed and the petitioners was directed to hand over the peaceful possession of the land in question to the complainant/ respondent No. 1 bearing Khawat No.01, Khatooni No.100, Khasra No.667, situated at Mouza Spozand Dasht Tehsil and District Mastung ("land in question").

2. Facts of the case are that the respondent No.1/complainant filed a complaint under Sections 3, 4 of Illegal Dispossession Act, 2005 against the petitioners, stating therein that the complainant/respondent No.1 is lawful and recorded owner of land in question. It is further averred in the complaint that on 10th July 2018, the complainant/ respondent No.1 came to know that the petitioners have illegally entered in the land in question and started to build a wall without any legal authority. Hence, the complainant/respondent No.1 along with witnesses Sohbat Khan and Muhammad Ismail went to the spot and asked the petitioners to restrain from their illegal act of construction, but they being the members of the land Mafia, armed with deadly weapons launched attack upon the complainant and assaulted him, the complainant/respondent No.1 lodged FIR No.22/2018 under Sections 504, 506, 447, 427, P.P.C. against the petitioners, while at the time of their arrest they were also found in possession unlicensed arms, hence separate FIR Nos.22, 23 and 24 of 2018 for offence under Section 13-E of Arms Ordinance were lodged against them. It is further averred that the act of the petitioners falls within the ambit of Sections 3, 4 of Illegal Dispossession Act, 2005 and lastly prayed for restoration of his possession over the land in question. Along with main complaint, the complainant/respondent No.1 has also filed an application under Section 7 of Illegal Dispossession Act, 2005, for interim relief.

3. Record reveals that after submitting the report by the concerned revenue authorities, the learned trial Court took the cognizance of the matter and issued notices to the petitioners, who accordingly made their appearance before the learned trial Court and after hearing arguments on application under Section 7 of Illegal Dispossession Act, 2005, the same was allowed and the petitioners were directed to hand over the peaceful possession of the land in question to the complainant/respondent No.1, vide impugned order 10th November 2018. Whereafter, instant petition has been filed before this Court and vide order dated 19th November 2018, the petition was admitted for regular hearing and also the operation of impugned order was suspended.

4. Heard the learned counsel and perused the available record with care and caution. Perusal of record reveals that both the parties have taken divergent plea and are claiming their ownership and possession over the land in question. The complainant/respondent No.1 is claiming the ownership of the land in question and has made reliance over the revenue record existed in his name, while the petitioners are claiming that the land in question is their ancestral property and has come to their share through family settlement. Besides, they possess the same since long and also their houses and a Masjid is existed over the same. The petitioners have also claimed the mutation entries in the name of the complainant/respondent No.1 as product of fraud and misrepresentation. It has also been observed that with regard to land in question a civil suit is also pending before the learned Qazi Dasht Mastung. Besides, earlier similar complaint of under Sections 3, 4 of Illegal Dispossession Act 2005 was filed against the petitioners by the brother of the complainant, which was rejected. It has been established that the dispute over the property in question existed in between parties since long, which resulted into filing of civil as well as criminal proceedings.

5. All these facts show that the dispute over the land in question had already existed in between the parties prior to filing of complaint, but however, the trial Court has to see whether earlier the complainant/respondent No.1 was in possession of the land in dispute and he was dispossessed by the petitioners or only the revenue entries are existed in his name. Admittedly, the complainant has to establish his ownership as well as his last possession over the land in question till 10th July 2018 and thereafter his forcible vacation from the land in question by the petitioners being the member of Land Mafia or Land Grabber. In order to prove such facts, evidence is required to be recorded from both the sides. The impugned order of the learned trial Court directing for vacating the petitioners from the land in question is erroneous being delivered by over-sighting the relevant record as well as the peculiar circumstances of the case. Even otherwise, the scope of Section 7 of the Illegal Dispossession Act, 2005 is limited and the Court has to form its opinion tentatively without touching the merits of the case, but the trial Court has exceeded such limit by forming his opinion to such extent that amounts to final decision of the case and it would certainly effect the merits of the case. For the above reasons, the petition is allowed. The impugned order dated 10th November, 2018 passed by learned Sessions Judge Mastung is set-aside and the parties are directed to maintain the status-quo in respect of the land in question. However, the learned trial Court is directed to expedite the trial and to conclude the same at the earliest, but not later than a month. The observations made hereinabove are purely tentative in nature, which shall not influence the merits of this case as well as the civil matters of parties pending before the Civil Courts. SA/24/Bal. Revision allowed.