2010 PLP 523 (MLD)

AMIR HANI MUSLIM, J.

Through this Criminal Revision Application, the applicants have impugned the order, dated 8-10-2008 passed by the Additional Sessions Judge, Kotri passed on an application under section 265-K, Cr.P.C. moved in complaint under section 3 of Illegal Dispossession Act, 2005. The facts of the case as they appear from the record are that the applicants filed complaint under Illegal Dispossession Act before the Additional Sessions Judge, Kotri claiming to the owners of the private Qabuli land bearing Survey Nos. 38/1, 39/1, 40/1, 106, 107, 108, 113, 114, 115, 181, 188, 189, 194 to 199, 270 to 275, 280/1, 281/1, 282/1, 283/1, 184/1 and 285/1 admeasuring 101-17 acres situated in Deh Kalo Khohar, Taluka Thano Bola Khan, District Jamshoro through registered sale-deed, dated 21-6-1987. The said land claimed to be was purchased by the applicants from one Muhammad Afzal son of Muhammad Suleman and it was also mutated in favour of the applicant in the record of rights. It was further claimed that the applicants were in possession of all the documents of ownership and the entries in the record of rights have also been kept but in the month of October, 2005 the respondents illegally occupied portion of the land in question for which the complaint under section 3 of the Illegal Dispossession Act was filed. On filing the above complaint, the Trial Court called the comments from the concerned S.H.O. who reported that the respondents were in physical possession of the portion of the land and claims to be the owners. Meanwhile respondent No.2 for self and on behalf of respondent No.1 filed objections. Subsequently an application under section 265-K, Cr.P.C., was moved by the respondents on the ground that there was no probability of conviction, hence the complaint was dismissed by the Trial Court by allowing the application of the respondents under section 265-K, Cr.P.C. against which this Criminal Revision Application has been preferred. The learned counsel for the applicants has contended that the applicants are the owners of the land in question and the impugned order was harsh and against the norms of law. He further contended that the Trial Court has failed to give weight to the report furnished by the S.H.O. and Mukhtiarkar concerned; the respondents neither disputed the ownership of the applicants nor produced any title document of the land in dispute. The impugned order according to the applicants counsel was in conflict with the settled norms of the principles of Superior Courts. The applicants counsel contended that applicants were handed over the physical possession of the property by the competent authority after demarcation under mashirnama, dated 30-1-1988. On the other hand the respondents after notice filed number of documents in support of their claim. On 16-10-2009 this Court directed the Mukhtiarkar Thana Bola Khan to appear with original record and on 30-10-2009 the Mukhtiarkar was also directed to submit complete report in regard to the status of the land and its ownership. On 31-10-2009, Mukhtiarkar Revenue Thana Bula Khan has appeared and submitted his report which reads as under:-- "It is submitted that as per Entry number 496 in V.F. VII-A No.618 (27-04), 556 (24-20), 627 (13-0) and 653 (26-33) Deh Kalo Khohar are shown in the name of Walidad son of Ali Bux. This entry has been transcribed from Entry No.43 of D.K. Register Book No.529(6). As per Entry No.02, dated 8-4-1987 in V.F. VII-B, above khet numbers have been purchased by Muhammad Afzal son of Muhammad Suleman from Walidad son of Ali Bux through registered sale-teed. Subsequently as per Entry No.30 in V.F. VII-B Muhammad Afzal son of Muhammad Suleman sold out about Khet numbers to Liaquat son of Hafeez, Nawab Khan son of Muhammad Khan, Muhammad Iklaq son of Haji Muhammad Farooq and Masood Pervez son of Haji Muhammad Farooq through registered sale-deed. Thereafter Survey numbers 38/1, 391, 40/1, 106, 107, 108, 113, 114, 115, 187, 188, 189, 194, 195, 196, 197, 198, 199, 270, 271, 272, 273, 274, 275, 280/1, 281/1,.282/1, 283/1, 284/1 and 285/1 having total area 101-17 acres were formed from old Khet numbers and entered in the Revenue Record in favour of the applicants party on the basis of Ghat Wadh Form issued from Settlement and Survey department vide Entry No.56, dated 8-12-1987 in V.F. VII-B. As per Entry No. 132 of V.F. VII-A, Khet No.391 area 4-31 acres Deh Kalo Khokar is shown in the name of Mst. Hameeda Naqvi wife of Syed Ali Azhar Naqvi through registered sale-deed. As per Entry No.464 in V.F. VII-A Khet No.127/1 and 132 total area 13-09 acres in is shown in the name of Messrs Naqvi Enterprises purchased through registered sale-deed: As per Entry No.119, dated 24-3-2005 Khet No.203 and 415 total area 14-31 acres is shown in the name of Messrs Naqvi Enterprises Limited purchased from Haji Eidro son of Ali Bux, dui Muhammad son of Muhammad Miandad son of Moyani, Ayub son of Jan Muhammad and Muhammad Uris son of Raza Muhammad. The undersigned has visited the site along with concerned tapedar of the beat on 31-10-2009. The land of the applicants is located at 90 kilometers touching super highway from Hyderabad to Karachi. During the visit it was found that boundary wall was constructed on Survey Nos. 38/I1, 39/1, 40/1, 106, 107, 108, 114, 115, 187, 188, 195, 196, 197, and

198. The sketch of Deh Kalo Khohar and record of right has been verified which shows that survey numbers on which boundary wall is constructed belongs to applicant party. The surathal prepared on the site showing the land under boundary wall in red colour is submitted as annexure-H. The respondent party owns Khat numbers 391, 127/1, 132, 203, and 415 total area 50-20 acres. The area of respondent has not been surveyed and the location of Khet Nos. of respondent party cannot be ascertained until the land is surveyed by the Settlement and Survey Department". From the record perused by me coupled with the report of Mukhtiarkar it has been cleared that the applicants own area of 101-17 acres-on Which the respondents have raised the boundary wall and location of the land claimed by the respondents' is not established as there is no Sourathal. The respondents' land is unsurveyed and their title is also not perfect and record does not reflect the original source. The respondents have shown possession after the official assignee has handed over possession. The location however is not clear. I am clear in my mind that land of the applicants based on the aforesaid material has definite boundaries and the respondents have encroached upon the land of the applicants. The Trial Court was in error in dismissing the application of the applicants. I accordingly set aside the impugned order and direct the Mukhtiarkar to hand over possession of the land in question to the applicants. These are the reasons of my short order passed on 2-11-2009 whereby the Criminal Revision Application was allowed and Mukhtiarkar was directed to put the applicant in possession of the property which was owned and possessed by them as per the record. H.B.T./M-19/K Application allowed.