2014 PLP 1021 (MLD)

MALIK MANZOOR HUSSAIN, J.

Through the instant petition, the petitioners have challenged the order dated 29-1-2013 passed by the learned ASJ-VI, Peshawar whereby the complaint filed by the respondents under sections 3, 5, 6 and 7 of Illegal Dispossession Act, 2005 was held maintainable.

2. Briefly, the facts emerged out of petition are that respondents Nos.2 to 4 filed a complaint under Illegal Dispossession Act, 2005 against the petitioners in the court of ASJ-VI Peshawar. It was forwarded to S.H.O. concerned for report. After receipt of report, notices were issued to the petitioners/respondents, on objections, arguments on the maintainability of complaint were heard and through impugned order, the same was held maintainable and case was adjourned for framing of formal charge.

3. Learned counsel for the petitioners contended that the disputed property is inherited property of the parties. That the petitioner's case for partition is pending in civil court and in the circumstances of the case, no complaint under Illegal Dispossession Act, 2005 was maintainable. The cognizance taken by the learned trial Court was unjust and unwarranted under the law. The matter being of civil nature can best be resolved by civil case filed by the petitioners. Reliance was placed on Ch. Gulzar Ahmed v. The State 2004 YLR 1321, Jan Pervez v. Haji Fazat Hussain PLD 2007 Pesh. 179, Bashir Ahmed v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 and Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254.

4. Conversely, the learned counsel appearing on behalf of State and the complainant/respondent supported the impugned order of learned trial Court. They argued that the petitioners took law in their hands and without due course of law, they dispossessed the respondents/lawful owners. Further argued that the property was in lawful possession of the respondents, which fact was reflected from the material available on record.

5. Arguments head and the record perused. It is evident from available record that the complainants are owner in possession of disputed property. Report of S.H.O. coupled with revenue record supports the contention of complainant. The right of petitioners, if any, have to be seen after recording of evidence and that too after finalization of civil suit filed by them. It is noticed by this court that the civil suit for possession through partition was filed much after filing of complaint under Act, 2005. No possession was regulated by the civil court at the time of filing of complaint. The judgment relied upon by the learned counsel for the petitioners are distinguishable and are of no help to him as in all the three quoted judgments, the possession was regulated by the civil court before filing of complaint under Illegal Dispossession Act and due to pendency of suits, the complaints were declared non maintainable and more so, before filing of complaint the question of title was pending adjudication before civil court of competent jurisdiction.

6. It is well established that if the case of illegal occupation was not already pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act. In this behalf, reliance can safely be placed on to the case of Rahim Tahir v. Ahmed Jan (PLD 2007 SC 423) and Shahabuddin v. The State ( PLD 2010 SC 725). An occupier in peaceful possession cannot be dispossessed as per provisions of section 3 of the ibid Act. For advantageous purpose, the same 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 others or occupier of such property." Thus, for the purpose of attracting the provisions of section 3 of the Act, the Court is required to examine that whether the occupier of such property was in its lawful possession and the accused has entered upon the property unlawfully and to dispossess the occupier. Even a co-owner cannot dispossess another co-sharer without suit for partition or the due course of law.

7. In view of above discussion, this court is of the considered opinion that the Court below has rightly passed the impugned order, which is maintained and consequently, instant petition being devoid of force is dismissed. Record of the trial court be immediately sent back with the direction to expedite the disposal of case. HBT/465/P Petition dismissed.