2010 PLP 593 (YLR)

MIAN FASIH-UL-MULK, J.

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Syed Kamal Shah and others have challenged the judgment dated 30-7-2009 of learned Sessions Judge, Mansehra, whereby complaint of the petitioners filed under Illegal Dispossession Act, 2005 was dismissed.

2. Briefly stated facts of the case are that the petitioners are owners as well as co-sharers in the property fully described in the complaint and respondents Nos.1 to 3 have illegally taken possession of the suit land and retaining the possession as such since long; that time and again the petitioners approached the respondent to vacate the illegal possession but to no avail, therefore, the petitioners were constrained to lodge the complaint.

3. The respondents in response to notice submitted written reply to the complaint. Charge against the respondents was framed to which they pleaded not guilty and claimed trial. The petitioners produced three witnesses in support of the complaint whereas all the three respondents were examined under section 342, Cr.P.C. The respondents also opted to examine themselves under section 340(2) Cr.P.C. and produced defence evidence. The learned trial Court after hearing the arguments and analyzing the evidence dismissed the complaint vide impugned judgment dated 30-7-2009. Hence, this writ petition.

4. Learned counsel for the petitioners mainly contended that the impugned judgment is based on misreading and non-reading of material evidence on record as well as against the judgments pronounced by the superior Courts on the subject.

5. We have heard the arguments of learned counsel for the petitioners and gone through the record annexed with the petition.

6. A perusal of record would show that the petitioners had alleged in their complaint that respondents are in posses sion of the suit-land since long and further added that respondents have illegally taken the possession and retained the same. They never disclosed in the complaint that from whom and how the respondents have occupied the disputed land. In complaint as well as during deposition, P.W.3 Jamal Shah complainant had admitted that respondents are in possession since long. He, in cross-examination, has stated that respondents had taken possession in his childhood and at the time of taking possession by respondents his father was alive, who died in the year 1999. There-fore, the petitioners are not sure as to when the possession of the suit property was taken by the respondents either from the petitioners of their forefathers. He has admitted that respondents are in possession of the suit-land for 50 years and during these five decades the petitioners or their co-sharers never initiated proceeding of any kind against the respondents.

7. Respondent No.1 in his statement before Court submitted that father of complainant had mortgaged the suit property with the father of respondents and after receiving the mortgage consideration/ money had put the father of respondents in possession of the suit property. There is no evidence worth the name to show that the respondents had illegally taken possession of the suit-land and it is the case of respon dents that the disputed land was given to their fathers on mortgages and their posses sion is that of mortgages. Thus, it can be safely inferred that respondents being in possession for a long time, their possession would be presumed to be lawful unless it was declared otherwise by a Court of law.

8. The Illegal Dispossession Act, 2005 is a penal law, its provisions have to be strictly construed. Subsection (1) of section 3 is preventive in nature which indicates that all persons have been prohibited to commit the offence detailed under it. In order to get the benefit of this subsection, the complainant has to show before the Court following essential ingredients: (i) that he is the lawful owner or occupier of the immovable property in question; (ii) that the accused entered into the said property; (iii) that his entry into or upon the said property is without having any lawful authority. (iv) that he has done so with the intention to disposes to grab or to control or to occupy the said immovable property. From perusal of evidence produced by both the parties ingredients No.(iii) & (iv) are conspicuously missing in order to attract the provisions of section 3(2) entailing punishment.

9. In the facts and circumstances of the case the learned trial Court has rightly dismissed the complaint and has held that the complainants, if so desire, may approach Civil Court for redressal of their grievance. Resultantly, finding this petition bereft of any merit is hereby dismissed in limine. H.B.T./2/P Petition dismissed.