2017 PLP 305 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application under section 349-A read with section 561-A, Cr.P.C., applicant Nazo Kalhoro has impugned the order dated 20.12.2014, passed by learned Additional Sessions Judge (Hudood) Sukkur, whereby direct complaint No.63 of 2012, filed by the applicant under Section 3 of Illegal Dispossession Act, 2005, was dismissed.

2. Relevant facts spelt out from instant revision application are that applicant is lawful owner of plot bearing Survey No.1362/15, admeasuring 286-3 sq. yards, situated at Bhoosa Lane Qureshi Road, Old Sukkur, while adjacent plot bearing Survey No.1362/11 belongs to his mother namely Mst. Ameer Khatoon, upon which three are shops and one residential house are constructed, which were rented out to respondents Nos.1, 3, 4 and 7 by her. About five years back, respondents Nos.1 to 7 forcibly encroached upon the area of 850 feet of applicant's plot and constructed shops and residential house. Applicant along with his well-wishers approached the respondents time and again for handing over of the possession of the said plot, but they did not pay any heed and asked him to sell the encroached plot to them. On 07.09.2012, at about 8.00 a.m., applicant along with his brother Hazoor Bux and Illahi Bux Mahesar went toward the plot in question, where respondents were available in their shops. On the call of applicant, Ali Murad Keerio came out of his house and on demand of applicant to vacate the encroached area, he called Waheed, Faheem, Hamid, Ghulam Mustafa alias Mustoo, Dilshad and Dil Murad, and instigated them to kill the applicant, consequently, all the above accused brought lathis and pistols from their shops but on interception of mohallah people, applicant succeeded to save his life, hence applicant filed criminal complaint before the trial Court.

3. Learned counsel for applicant contended that learned trial Court has not properly examined the material available on record and has decided the criminal complaint in a civil nature proceedings; that learned trial Court has wrongly held that accused had purchased plot in question from Syed Nazakat Ali Shah, who had purchased said plot from the mother of applicant and such litigation is pending before the Civil Courts; that respondents produced photocopies of agreement before the trial Court in support of their claim, but said agreements were not entered in the record of Sub-Registrar, hence same are bogus and managed by them; that shops of applicant's mother are situated on a separate plot from the plot owned by applicant; that learned trial Court called reports from the concerned SHO and Mukhtiarkar and City Survey Officer and such reports were submitted before the Court which confirmed the ownership of applicant over his property; that City Survey Officer has reported that some portion of Plot No.A-1362/15 is in possession of Ali Murad and his family, but trial Court has not considered said fact; that SHO P.S. C-Section, Sukkur has not submitted report in terms of Section 5 of Illegal Dispossession Act, 2005; that learned trial Court without framing charge against the accused, has dismissed the criminal complaint which is liable to be set-aside.

4. While controverting the above submissions, learned counsel for respondents contended that prior to filing of instant complaint, Mst. Amir Khatoon, filed a Rent Application and in para-1 of application, it was specifically mentioned that she let out her property to respondent No.1, which is comprised of three shops and one residential house on oral agreement; that respondent No.1 Ali Murad filed his objections and clarified the entire position before the Rent Controller, while applicant was one of the witness in said rent case; that considering the entire adverse situation, applicant mala fidely filed instant complaint; that in fact the applicant and his mother had sold out their property to Syed Nazakat Ali Shah, and respondent No.1 had purchased his plot from said Nazakat Ali Shah through sale agreement; that applicant has not disclosed the specific date of the alleged encroachment by respondents; that rent case filed by the mother of the applicant was dismissed for non-prosecution by the learned Rent Controller, hence instant revision is liable to be dismissed. Learned counsel relied on the case of Mst. Inayatan Khatoon and others v. Muhammad Ramzan and others (2012 SCMR 229) and Khairat Hussain v. Additional Sessions Judge, Sheikhupura and others (2011 YLR 979).

5. Mr. Zulfiqar Ali Jatoi, D.P.G. adopted the arguments advanced by learned counsel for respondents and supported the impugned order.

6. Heard learned counsel for the parties and examined the material available on record.

7. Perusal of the record reflects that to substantiate the claim of applicant agitated in criminal complaint, learned trial Court called reports from SHO, P.S. C-Section, Sukkur and Mukhtiarkar and City Survey Officer, Taluka Sukkur, which emanate that the plot bearing Survey No.A-1362/15, admeasuring 286 sq. yards is owned by applicant Nazo, which is already under surety in a case pending before the Court of learned I-Additional Sessions Judge, Sukkur, while Plot No.A-1362/11 is entered in the names of M/s Allah Jurio, Ghulam Qadir and Rasool Bux, all sons of Saindino Solangi. Report submitted by Mukhtiarkar and CSO further reveals that per the measurement, an area of 827 sq. feet equivalent to 91.8 sq. yards from City Survey No.A-1362/15, is under the possession of respondent No.1 Ali Murad Keerio and his family members since about last 14 years, which is comprising of one shop in full, and portions of residential house and two shops. Admittedly, mother of the applicant namely Mst. Ameer Khatoon filed Rent Case No.31 of 2012 before I-Rent Controller, Sukkur and she claimed to be the owner of Survey No. 1362/11, admeasuring 111.00 sq. feet situated at Bhoosa Lane, Qureshi Road, Old Sukkur, which is comprising of three shops and one residential house, and same were rented out by her to respondent No.1 in the year 2002, and applicant was cited as one of the witness in said rent case. While respondent No.1 controverted claim of Mst. Amir Khatoon by filing objections that she had sold her property viz.1362/11, admeasuring 850 sq. feet to one Syed Nizakat Ali Shah for the sum of Rs.360,000/- through sale agreement dated 10.02.2004, and he had purchased the property in question from said Nizakat Ali Shah through his attorney Syed Riaz Hussain Shah vide sale agreement dated 13.02.2002. Said rent case was dismissed for non-prosecution by the Rent Controller vide order dated 28.05.2013. Conversely, applicant has been claiming to be the owner of said area of land which is controverting to the claim of his mother that she being owner, had rented out said property to respondent No.1 who had paid rent to her up to the month of December 2010 and thereafter he committed default in payment of rent. Applicant in para 5 of the criminal complaint, has alleged that respondent No.1 forcibly encroached upon the area of 850 sq. feet from his plot 5 years ago and constructed three shops and one residential house. Indeed, applicant has no explanation that after the alleged encroachment for years ago and during the raising of the construction of shops and residential house by respondent No.1, why he remained silent and did not initiate any legal action.

8. Indeed, applicant's entire claim is based upon the report submitted by Mukhtiarkar and CSO that Plot No.1362/15 is owned by him, while said report further reflects that disputed area of the plot is under possession of respondent No.1 since 14 years. Likewise, said report also narrates that plot bearing Survey No.1362/11 is in the names of Allah Jurio, Ghulam Qadir and Rasool Bux, all sons of Saindad Solangi, which also controvert the ownership of Mst. Amir Khatoon, and even she had not filed any suit against them for cancellation of such entries nor approached the concerned Revenue Authorities for correction of the same, despite having such knowledge that she is no more owner of said property. Applicant has failed to satisfy the Court regarding the contradictory claims raised by him and his mother before different Court in respect of the plot in question, and even it is not clear that whether disputed three shops and one house were constructed by respondent No.1 or Mst. Ameer Khatoon as well as mode of delivery of possession to respondent No.1 as a tenant of encroacher and such ambiguity and conflicting statements, prima-facie have invalidated their claims. Applicant has not disclosed the specific date and time of his alleged dispossession from the plot in question which is admittedly in the possession and use of respondent No.1 and per City Survey Officer report, he has been enjoying said possession since about 14 years, which is fatal to the allegations of applicant for his forcible dispossession from the said land, and contradictory stances taken by him demonstrate that applicant has not come to the Court with clean hands and he has filed instant complaint with sole purpose to frustrate the proceedings of civil suit pending before the Civil Court. Moreover, the alleged dispossession or encroachment if any, had occurred much prior to the promulgation of Illegal Dispossession Act, 2005, hence applicant could not agitate his claim by invoking the provisions of said Act, as it has no retrospective effect.

9. Perusal of the impugned order reflects that learned Trial Court has not committed any illegality or material irregularity while passing the impugned order, which otherwise is just and proper and does not call for any interference, hence stands maintained.

10. From the facts and circumstances disclosed supra, instant Criminal Revision Application stands dismissed in limine, being devoid of any legal substance. HBT/N-7/Sindh Application dismissed.