2021 PLP 84 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The applicant considers himself aggrieved with the order dated 06.02.2019 (impugned order), passed by the learned Additional Sessions Judge-IV (H), Sukkur, whereby a complaint filed by the applicant under the Illegal Dispossession Act, 2005 (hereinafter referred to as the Act ) bearing Complaint No.15 of 2009 was dismissed in limine.

2. The matrix of the case is laid in the alleged facts of disputation between the applicant and the respondents regarding some landed property. Purportedly, the complainant is the real owner of agricultural land bearing Survey No. 22/1 and some other survey numbers situated at Deh Mangria Panhwar, Taluka Rohri with his brothers and sisters as co-sharers through a registered sale deed executed on 24-04-2006 but the physical possession of the entire property in question was not hand over to the applicant. The applicant has also filed a C.P. No. D-3184/2013, which was disposed of vide order dated 15-04-2015 along with the listed applications. Through the impugned order, the learned Trial Court has dismissed the complaint of the applicant by observing that the parties already under litigation before competent forum and their dispute cannot be decided in a criminal proceeding when no incident of illegal dis-possessing had taken place.

3. I have heard the arguments advanced on behalf of the respective parties and gone through the relevant records.

4. Mr. Mushtaq Ahmed Shahani, learned counsel for the applicant while assailing the impugned order prefers his submission at length. The gist of his arguments is that learned Additional Sessions Judge has not appreciated the case of the applicant properly, as it is settled law that civil and criminal proceedings can be carried out simultaneously. The lands were measured as per directions of this Court in C.P. No. D-1965 of 2015. It is also incorrect to conceive that the respondents were not present at the time of inspection and measurement of the agricultural lands belonging to the parties; as the signature of the respondent, Sardar Ali is available on the inspection report. After measurement by the survey department, the applicant came to know about the possession of his land by the respondents. The ownership of the applicants is not disputed and even the respondents in their replies have admitted that two ghuntas of applicant's land in their possession. In support of his contentions, he relied upon the case of Shaikh Muhammad Naseem v. Mst. Farida Gul (2016 SCMR 1931), Salamuddin v. SHO Police Station Halani and another (2016 YLR 2760) and Ali Murad alias Jameel v. Muhammad Juman and 4 others (2017 YLR Note 42).

5. Mr. Muhammad Ali Napar, learned counsel for the respondents contradicts the submissions of the learned counsel for the applicant. Briefly, his arguments are that respondent Sardar Ali has never signed on the alleged survey report and the same is denied. The applicant has not made the respondents party in the constitutional petition. The applicant and respondents both have purchased their respective lands from two different parties, who are close relatives amongst themselves. The respondents have filed a suit, which is pending. There is no case of illegal dispossession as the applicant is in possession of the respondents' considerable land while there is a tiny piece of two ghuntas of the applicant in their possession.

6. Syed Sardar Ali Shah, learned Deputy P.G supports the impugned order and submits that no case of illegal dispossession is made out.

7. Mr. Mushtaque Ahmed Shahani mainly contended about the non-appreciation of the facts by the learned Additional Sessions Judge. In his view, since some portion of the applicant's land is under the occupation of respondents; therefore, a complaint under the Act, is fully competent. I consider that such an assertion of Mr. Shahani is not correct. It is not disputed that the applicant has acquired rights of ownership under a sale deed. Allegedly, both the parties have purchased their respective pieces of land from two different sellers, who might have been related to each other. However, the applicant was not put in possession of the entire land that is why he approached this Court by filing a constitutional petition for getting demarcation. Mr. Shahani himself has admitted that the applicant first time came to know about the exact shortage of the area of land and that it was under the occupation of the respondents at the time of measurement under the directions of this Court. On the other hand, the respondents are also under perplexity regarding the area of land, which was given to them by the seller regarding which they have already filed a civil suit. I consider that the parties should approach the civil court for demarcation etc. if there is some mystification or incomprehension regarding the area and boundaries of land in question.

8. Be that as it may, the applicant's contention is that his land is not as per his sale deed, which indicates that he was not put in possession of the entire land by the seller at the time of execution of the sale deed. Meaning thereby that when the appellant has acquired right, a portion of land was already in possession of somebody else who might be the respondents. A person, who seeks remedy under the Act can seek such relief provided he was dispossessed from the property. If a person purchased a property from which the previous owner was already dispossessed on any account either by throwing clouds on the title of the previous owner or not, the only course available to the subsequent owner to approach civil court. The law thus declares the occupancy right of a person to be maintained, who is given occupancy by the previous owner at the time transferring the good title to the new owner. It is also worth noting that occupancy and title are two different and distinguishable things. Whatever the nature of occupancy a person acquires from the previous owner, he can only be ejected in due course of law. The purpose of the Act is not to substitute the due process as a shortcut for acquiring possession by a non-occupant, who has never been in possession of the property although he has acquired a title over the property. So far as to the right of restoring possession is concerned, the same is already available to a person, who has been dispossessed illegally in a possessory suit under section 9 of the Specific Relief Act. The aim of the Act is not to restore possession but to punish a person, who has illegally disposed of a lawful owner and/or occupant of a property. Hence, to move the criminal law in motion, under the Act regarding illegal dispossession, it is necessary that the person, who intends to approach the court with a complaint, must establish: (i) that he was in physical or constructive possession of the property; (ii) that he was dispossessed from the property by the person or his agent against whom he is preferring complaint; (iii) that he was dispossessed of the property by the said person illegally by using force or through fraud;

9. If the above three ingredients are satisfied, it will be said that the complainant has been illegally dispossessed of his property by the respondents or proposed accused and a complaint against such dispossession is maintainable. Nevertheless, in the present case, the applicant was never in the possession of the property in question, rather he was unaware of the fact that when and by whom he or even the previous owner was dispossessed. In the existing position of affairs, it can be said that the applicant may have some right enforceable through a civil court but he has no right to put the criminal law in motion under the Act. Hence, the instant criminal revision application was dismissed through a short order dated 07.09.2020 and these are the reasons for the same. JK/S-122/Sindh Revision dismissed.