2012 PLP 1652 (MLD)

WAQAR AHMAD SETH, J.

Through this writ petition, petitioners had challenged the impugned judgment dated 25-6-2009 of learned Additional Sessions Judge-XI, Peshawar/respondent No.2 whereby the complaint filed under section 3/4 of the Illegal Dispossession Act, 2005 has been dismissed.

2. Precise facts are that petitioners filed a complaint under section-3/4 of Illegal Dispossession Act, 2005 against the respondent No.1 alleging therein that petitioners are lawful owners of the property in question measuring one kanal bearing khasra No.923/69, mutation No.6491 dated 4-7-1981. The said complaint was marked by the respondent No.2, to the local police for inquiry and the local police conducted the inquiry, accordingly and submitted the report.

3. When the inquiry report was submitted before respondent No.2, the respondent No.1 presented a false and bogus stamp paper claiming the ownership in the property in question.

4. The petitioners submitted an application to the high-ups of the local police and on the directions an inquiry was conducted on the said forged document/stamp paper. In this regard, statement of Record keeper of Mohifaz Khana as well as Deed Writer were recorded and then upon the recommendations of District Public prosecutor, Peshawar an F.I.R. was lodged against respondent No.1 regarding the said bogus and forged stamp paper.

5. Respondent No.2 without recording any pro and contra evidence dismissed the complaint of the petitioners under Illegal Dispossession Act, 2005, vide impugned order dated 25-6-2009, hence this writ petition.

6. Learned counsel for the petitioners contended that the impugned judgment of respondent No.2 is without law and facts on record and while passing the impugned order the entire facts of the case have not been brought into consideration; that respondent No.1 illegally, unlawfully and without lawful authority occupied the portion of the property of the present petitioners and in order to give the protection, prepared a forged and bogus stamp paper, against which inquiry was conducted and F.I.R. has been registered but the learned trial court has ignored this aspect of the case; that the findings of the learned Additional Sessions Judge regarding the constructed kothas in the revenue record as well as in the Mutation No.6491 dated 4-7-1981 are against the record as no such thing is mentioned/available on record; that the findings are the result of non-reading and misreading of evidence besides being in haste and in hostile manner without considering the legal and factual aspect of the case; that the petitioner/ complainant is a lawful and recorded owner of the property in question whereas respondents are illegal occupants in the portion of the property and in order to legitimate there illegal possession and occupation, false claim of ownership on the basis of a stamp paper which has been declared as fake and bogus, clearly brings the case within the ambit of Illegal Dispossession Act and the learned lower court i.e. respondent No.2 without recording any evidence dismissed the same.

7. As against this, learned counsel for the respondents submitted that the dispute is of civil nature and two civil suits are pending before two different civil courts and at present there is no iota of evidence that respondents forcefully dispossess the petitioners and as such the learned trial court decision is in accordance with the material available on record.

8. Arguments heard and record perused.

9. It appears from the record that the civil litigation has been initiated after the institution of the present complaint in order to defeat the law applicable. The Illegal Dispossession Act is applicable to all the cases of illegal and unauthorized occupation by any one, without any distinction. Apparently, respondents seems to be an illegal and unauthorized occupants of the premises specially in the circumstances when in order to prove his legitimacy to the property he submitted a stamp paper regarding ownership and after inquiry it is proved that the same is a bogus and fictitious documents and an F.I.R. has been registered in this respect.

10. For the purpose of attracting provision of section 3 of Illegal Dispossession Act, 2005, court is required to examine as to whether property was an immoveable property; secondly that the person was owner or the property was in his lawful possession; thirdly that accused entered into or upon the property unlawfully; fourthly, that such entries was with intention to dispossess i.e. ouster, evict or deriving out of possession against the will of person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise powers or influence over regulate or govern or relate to authority over that what is not one's physical possession or to occupy i.e. holding possession, residing in or something. In order to prove all these and to reach just and proper conclusion and specially in the instant case recording of pro and contra evidence was a requirement and which, we feel that the learned trial court while not recording pro and contra evidence in the prevailing circumstances, has committed gross illegality due to which a party has suffered miscarriage of justice.

11. The pendency of civil litigation also does not debar the complaint under Illegal Dispossession Act nor the court can summarily dispose of the proceedings the way, has been done. Moreover, it is observed that in the impugned judgment/order dated 25-6-2009 the learned Judge has not even discussed F.I.R. No.590 dated 17-5-2009 which was registered during the pendency of instant complaint and was regarding the same stamp paper upon which the ownership was claimed.

12. In view of the above while accepting this writ petition, the impugned order is set aside and the matter is remanded to the trial court for deciding the same afresh after recording pro and contra evidence. Order accordingly. MWA/192/P Order accordingly.