2016 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

Through the captioned Criminal Revision Application, the applicant/complainant Muhammad Nadeem Khan has called in question order dated 17.11.2015, passed by the learned Additional Sessions Judge, Kotri in I.D. Complaint No.33 of 2014 (re: Muhammad Nadeem Khan v. Muhammad Hussain Shoro and others), whereby application under section 7 of The Illegal Dispossession Act, 2005, filed by the applicant, has been dismissed.

2. Briefly the facts of the case are that the applicant/complainant Muhammad Nadeem Khan had filed I.D. Complaint No.33 of 2014 under sections 3(2), 5 and 7 of The Illegal Dispossession Act, 2005, in the Court of Sessions Judge, Jamshoro at Kotri, which was made over to the Court of Additional Sessions Judge, Kotri. The case of the applicant (complainant) Muhammad Nadeem Khan is that a piece of land admeasuring 02-00 acres, out of Survey No.1/ 9-18, situated in Deh Sonwalhar, Tapo Bolhari, Taluka Kotri, is alleged to have been purchased by the applicant through a sale agreement purportedly executed between him and one Naveed Ahmed Khan, the alleged attorney of one Abdul Rehman on 20,12.2012; the applicant wanted to launch a housing scheme on the aforesaid land; on 07.06.2015 at about 12:00 (Noon), accused Ashraf Shoro, who is allegedly contractor of accused, Tariq Shoro, in connivance of accused Muhammad Hussain Shoro came on the land and by dumping construction material started constructing boundary wall on the subject land through their labours; on coming to know about it, the applicant rushed to the site and inquired about the construction of boundary wall on the subject land to which the aforesaid accused, claimed their ownership thereof and then the applicant came to know that the aforesaid accused have deployed some persons having deadly weapons at the site, hence he filed the above I.D. Complaint. Along with the complaint, he also filed an application under section 7 of The Act Ibid, praying therein for handing over the possession of the subject property as an interim relief; the accused/respondents Nos.1 to 3 filed their objections on the aforementioned application, denying the allegations of dispossessing the applicant from the subject property and claimed the property to be their own property; after hearing the parties' counsel learned Additional Sessions Judge, Kotri vide order dated 17.11.2015 dismissed the aforesaid application, hence this Criminal Revision Application.

3. Learned advocate for the applicant has mainly contended that the applicant is lawful owner of the subject property by way of purchase through an agreement of sale from Naveed Ahmed, the attorney of one Abdul Rehman, who, per him, is owner of the subject property; that the respondents Nos.1 to 3 have forcibly occupied the subject property and raised boundary wall around it; that the impugned order dated 17.11.2015, passed by the learned Additional Sessions Judge, Kotri is illegal. He, therefore, requests that the impugned order dated 17.11.2015, may be set aside and the application under section 7 of the Act Ibid, filed by the applicant, may be allowed.

4. Conversely, the learned advocate for the respondents Nos.1 to 3 has mainly contended that the respondents No.1 to 3 have never dispossessed the applicant from any property and they are in occupation of their own property; that the learned Additional Sessions Judge, Kotri after considering the material placed before him, has dismissed the application filed by the applicant vide impugned order dated 17.11.2015. He, therefore, prays that the instant Criminal Revision Application may be dismissed.

5. Learned A.P.G., submits that the learned Additional Sessions Judge, Kotri has not committed any illegality by dismissing the application of the applicant vide impugned order dated 17.11.2015, which does not call for any interference.

6. I have heard the arguments of learned counsel for the parties and learned A.P.G. for the State and have gone through the material available on the record.

7. According to provisions of The Illegal Dispossession Act, 2005 persons, who can approach the court of competent jurisdiction for seeking relief under the Act Ibid, having been defined, are namely owner and/or occupier of the subject property. Definitions of occupier and owner for the purpose of applicability of the provisions of the Act Ibid, have been provided by clauses (c) and (d) respectively of section 2 of the Act Ibid, which read as under:- "2(c) "occupier" means the person who is in lawful possession of a property; "2(d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law."

8. For the sake of convenient subsection (1) of section 3 of the Act Ibid and subsection (1) of section 4, under which the Court can take cognizance of the offence under the provisions of the Act ibid, are reproduced:- "

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 owners or occupier of such property. "

4. Cognizance of offence.

(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint."

9. Manifestly the instant matter involves the question relating to the restoration of possession of the subject property as an interim relief pending the aforementioned case based on I.D Complaint before the trial court. The relevant provision under which such interim relief is to be considered is subsection (1) of section 7 of The Act Ibid, which reads as under:-

7. Eviction and mode of recovery as an interim relief

(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession.

10. From the above, it is clear that for attraction of provisions of the Act ibid and in order to get the benefit of subsection (1) of section 3 of the Act ibid, the complainant has to prima facie establish before the court that he is lawful owner or was occupier of the subject property; that accused had entered into or upon the said property without having any lawful authority; and that the accused had done so with the intention to dispossess or to grab or to control or to occupy the said property and that the order as an interim relief regarding restoration of the possession of the subject property to the complainant under the Provisions of section 7 of The Act Ibid, pending trial, can only be passed when prima facie it is established to the satisfaction of the Court that the complainant is a lawful owner of the subject property; that he was illegally and forcibly dispossessed by the accused and that the accused is in an unlawful possession of the subject property.

11. Perusal of the material available on record reveals that in this case the parties have divergent and conflicting claims over the properties which are alleged to be the different properties; that the applicant claims to have purchased the property through an agreement of sale. At this juncture, I refrain myself from giving any finding on the assertions of the applicant regarding his claim of ownership over the subject property on the basis of alleged sale agreement purportedly executed between him and one Abdul Rehman, as it may prejudice the case of either party. Moreover, prima facie the possession of the complainant over the subject property could not be established as no evidence or any document has been produced by the applicant to prima facie establish that he was occupier of the subject property within the meaning of section 2(c) of The Act ibid. In my humble view, in absence of any material establishing applicant's possession, the contention of the learned advocate for the applicant that he was in lawful possession of the subject property is not tenable.

12. In view of what has been discussed above, I am of the considered view that the applicant has failed to make out his case for grant of interim relief under the provision of section 7 of the Act ibid and his application seeking such relief was liable to be dismissed. I do not find any illegality in the impugned order, passed by the trial court, dismissing the aforementioned application filed by the applicant and no exception can be taken to such order of the trial court. Learned advocate for the applicant has also not been able to point out any jurisdictional infirmity or any illegality in the impugned order, passed by the trial Court, attracting the interference of this court in its revisional jurisdiction. The Criminal Revision Application being devoid of merit is liable to he dismissed.

13. Above are the reasons of my short order dated 08.02.2016, whereby the instant Criminal Revision Application was dismissed

14. It needs no reiteration that the observations made herein above are tentative in nature and shall not influence the trial Court, while deciding the aforementioned case. MH/M-99/Sindh Revision dismissed.