P L D 2009 Lahore 220 (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel for the petitioner submits that he had bought a property, subject-matter of the instant petition from respondent No.5. Mutation No.1720 was entered on 2-7-2005. The possession was also handed over to the petitioner on the same date. The mutation was duly passed in accordance with law on 16-7-2005. However, on 28-11-2005, petitioner was dispossessed by the respondents. The petitioner got registered F.I.R. No.335 of 2005 on 30-11-2005. The petitioner also filed complaint under the Illegal Dispossession Act, 2005 on 22-2-2006. The complaint was dismissed on 20-5-2006 on the ground that the dispute between the parties was of civil nature. The learned Addl. Sessions Judge formed the above opinion on the basis of civil suit filed by respondent No.4 on 5-12-2005.

2. The grievance of the learned counsel for the petitioner is that impugned order was passed without considering the relevant documentary proof and report of the S.H.O. The learned counsel further submits that he was dispossessed prior to filing the civil suit and even prior to registration of the criminal case. The learned counsel relies upon 2006 PCr.LJ 636, PLD 2007 SC 423 and PLD 2008 Lah. 392.

3. The learned counsel appearing for the respondent refers to PLD 2008 Lah.

392. Wali Muhammad v. A.S.J. contending that a complaint under the Illegal Dispossession Act is not maintainable where the matter is being regulated by a civil, revenue court etc. According to him, admittedly civil suit regarding the same property was filed prior to filing of the complaint under the Act.

4. I have considered the contentions. The impugned order itself points out that the complainant (present petitioner) had purchased land (subject-matter) from respondent No.5 Taj Muhammad son of Muhammad Hameed for a consideration of Rs.30,00,000 in July, 2005 vide Mutation No.1720.The above fact is also not disputed by the learned counsel for the respondent. The S.H.O. in his report dated 9-5-2006, also endorsed the above facts. The S.H.O. in his report also reported that respondents took over possession of the property after forcibly ploughing the crop of wheat sowed by the present petitioner. The S.H.O. also stated that possession was taken forcibly and through illegal means. Despite above, the learned A.S.J. dismissed the complaint on the ground that respondent No.5 had filed suit, hence the dispute was of civil nature. From the above facts, it appears that respondent No.5 in collusion with other respondents filed. civil suit on 5-12-2005 after dispossessing the petitioner on 28-11-2005 through illegal means to shield offences committed by respondents as well as illegal dispossession of the petitioner.

5. The lawful basis of filing complaint is illegal dispossession as laid down in a number of cases by the superior Courts of this Country. For example, the Hon'ble Supreme Court has held that the Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of the owner and lawful occupant of the property as against the unauthorized and illegal occupant PLD 2007 SC

423. The impugned order and the report of the S.H.O. clearly mention that petitioner was a rightful owner and lawful occupant of his property before he was illegally dispossessed. The same judgment further lays down that careful examination of the relevant provision of the Act would reveal that all cases of illegal occupants without any discrimination would be covered by the Act, except the cases which were already pending before any other forum. As noted above, the learned A.S.J. himself did not find any defect with lawful ownership of the petitioner. The same also reflects from the report of the S.H.O. which was also not disputed by the respondent before the learned A.S.J. or any other forum. In the above circumstances, filing of civil suit on 5-12-2005 after illegally dispossessing the petitioner from his property does not affect the maintainability of the complaint which vide impugned order was dismissed by .the learned A.S.J., Pakpattan Sharif. The precedent cited by the learned counsel for respondent PLD 2008 Lah. 392 is not applicable in the facts and circumstances of the instant case. I have already pointed out above that it seems that civil suit was filed on 5-12-2005 after illegally dispossessing the petitioner and to cover the same, with mala fide intention.

6. In view of the above reasons and discussion, this writ petition is allowed; the complaint of the petitioner shall be deemed pending before the learned A.S.J. who shall decide the same afresh on merits, disregarding the facts of pendency of civil suit dated 5-12-2005. M.B.A./K-3/L Petition allowed.