2010 P Cr (PLP)

BHAJANDAS TEJWANI, J.

Allowed subject to all just exceptions.

2. This is Criminal revision application against the order dated 16-3-2010 passed by learned III Additional Sessions Judge Karachi (South), whereby he has dismissed the complaint under sections 3 and 4 of the Illegal Dispossession Act 2005 preferred by the applicant Mst. Fatima widow of Zainuddin in respect of Plot bearing No. CL-1/1, Dr. Zaiuddin Ahmed Road, a building known as Saifee House. The brief facts as asserted in the complaint are that the complainant is exclusive owner of the above building which belonged to her father, who expired on 16-8-1977. On demise of father of complainant, her mother Mst. Zainab Bai filed Succession. Application before this Court for the Letters of Administration in respect of various properties belonging to the deceased including the property in question which was granted in favour of Mst. Zainab Bai with consent of all the heirs. During the year 1996, properties belonging to late Zainuddin were distributed and partitioned. The property in question was inherited by the complainant and Mst. Shireen Bai. Later on, Mst. Shireen Bai also conveyed her 50% share in favour of complainant, who has become exclusive owner of the property. After becoming owner in the year 1996 the complainant/ applicant served notice on the respondent No.1/accused calling upon him to vacate the premises as according to the complainant the accused was occupying the premises without any lawful authority. As per complainant's version the accused after keeping her on false hopes filed Suit No.431 of 2009 for permanent injunction. In' the last, the complainant alleged in her complaint that the respondent/accused is in illegal and unauthorized possession. The respondent/accused on service filed his reply but same has not been produced by the applicant for the reasons best known to him but it reveals from the impugned order that the respondent/accused has taken a plea that he has been occupying the premises as a tenant of Badaruddin son of one of legal heirs. Mst. Asma daughter of Mullah Mohammadali since 1987. The respondent/ accused in support of his contention filed I rent receipts, utility bills of the premises in his name, the trial Court after hearing both the parties dismissed the same by holding that the complaint is not maintainable. I have heard Mr. Muhammad Safdar, learned counsel for the applicant and Mr. Khadim Hussain, D.P.-G Sindh, who has waived the notice. Mr. Muhammad Safdar, learned counsel for the applicant has contended that the complaint was filed in terms of sections 3 and 4 of the Illegal Dispossession Act 2005, which was enacted in order to curb the activities' of property grabbers and that after becoming owner of the property in the year 1996 the applicant immediately served a notice on the respondent for vacating the premises as he was occupying the same unauthorizedly without having any title. Learned counsel further argued that since no plea with regard to bona fide ownership or title was proved by the respondent therefore the provisions of Illegal Dispossession Act were attracted in the matter and the learned trial Court should have taken cognizance in the matter and that should not have passed the impugned order, dismissing the complaint. Mr. Khadim Hussain learned Deputy Prosecutor-General, Sindh has not been able to advance any arguments on the subject-matter and was not able to assist the Court. I have gone through the available record produced by the applicant's side along with case file. It is an admitted position from the record itself and arguments of learned counsel for the applicant that the respondent/accused was in possession of the property much prior to transfer of the same to the applicant by virtue of inheritance but the applicant in his complaint as well as in her appeal is silent with regard to the acquiring of the possession of the property by the respondent, even the complaint itself is silent with regard to the time and date of dispossession, which is a prime consideration in a criminal case, as in case the complaint is proved, the respondent/accused nominated therein is to be punished but the complaint is silent with regard to the important feature for prosecution of an accused under the Illegal Dispossession Act. Not only the time and date but year of commission of offence is also missing from the complaint and no evidence which was to be adduced by the complainant has been brought on the record and a vague complaint was preferred. The complainant in her complaint has herself admitted that in the year 1996 she acquired the premises by way of inheritance and after that she issued notice to the accused for vacating the premises but since 1996 upto the year 2009 i.e. for complete 14 years the applicant/complainant was silent with regard to her right for getting possession of the property from the respondent, therefore on this score alone the complaint cannot be maintained under sections 3 and 4 of the Act as no details have been arrayed in the complaint that when the respondent actually became in possession of the property. The most essential ingredient of Act XI of 2005 is that there should be dispossession or the owner or occupier of the property and in case the owner or occupier does not level the allegation of his dispossession or forcible occupation of accused over the property, then the provision of Act will not be applicable. For sake of convenience the section 3 of Act XI of 2005 is reproduced as under:-- "(3) Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful, authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. (2) Whoever contravenes the provision of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544 A of the Code." In the case in hand the complaint itself is silent and did not disclose any incident of dispossession. This will lead to a conclusion that no offence of forcible dispossession and occupation has taken place, warranting exercise of jurisdiction under the said Act. On the other hand the respondent has pleaded that he is in possession of the property since 1987 as tenant of Badaruddin son of Mst. Asma, one of the legal heirs of actual owner Mullah Mohammadali but thereafter the property has been distributed amongst the share holders and property in question was acquired by the applicant which can be termed as acquisition of ownership by virtue of inheritance. Moreover the respondent has produced convincing evidence in shape of utility bills of Electricity, Telephone and Sui Gas and so also rent receipts which were deposited by him in the Court of Rent Controller concerned. All these factors coupled with admission of the applicant that the respondent is enjoying the possession of the property much prior to the acquirement of the ownership of the property by her are sufficient to constitute that no incident of dispossession, if any, has; taken place as respondent is in possession of the premises from so many years and much prior to promulgation of Act XI of 2005. As such, the provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005 are not attracted in the instant case. Therefore, the trial Court has rightly concluded that the complaint was not maintainable. For the foregoing reasons, the Criminal Revision Application was dismissed by short order dated 1-5-2010. H.B.T./F-12/K Appeal dismissed.