2017 PLP 409 (YLRN)

ZAFAR AHMED RAJPUT, J.

This criminal revision application under section 439 read with section 435 of the Cr.P.C. is directed against the order dated 02.05.2016, whereby the learned Sessions Judge, Jacobabad dismissed the Illegal Dispossession Complaint No.15 of 2015 (Re: Allah Rakhyo and another v. Muhammad Nawaz and others), filed by the applicants/complainants, under section 3(3) of Illegal Dispossession Act, 2005, (hereinafter referred to as the "Act, 2005").

2. Briefly facts of the case are that the applicants above-named filed aforementioned I.D. Complaint before the Court of Sessions Judge, Jacobabad averring therein that they as well as their women-folk are the owners of land, to the extent of their shares, bearing survey Nos. 127, 107, 119, 120, 143, 144, 145,146, 149. 150, 165, 166, situated in Deh Khoso, Tapu Thul Purano, Taluka Thul (hereinafter referred to as the "land in question") being their inherited property. It has further been averred that on 09.06.2015 the respondents Nos. 2 to 5/proposed accused without any right or title in or over land in question, illegally and forcibly occupied the same by dispossessing the applicants.

3. The learned Sessions Judge, Jacobabad after holding investigation under section 5 of the Act, 2005, dismissed the complaint, vide order dated 02-05-2016, holding the same as not maintainable by observing that occupation of the respondents Nos. 2 to 5 on the land in question is not illegal and the dispute between the parties is purely of civil nature, as contractual issues are involved in the matter; besides, the respondents are neither reported to be land-grabbers nor they are part of land mafia. It is this order against that instant criminal revision application has been maintained by the applicants.

4. I have heard the learned counsel for the parties and A.P.G. for the State and perused the material available on record.

5. Learned counsel for the applicants has contended that the applicants are joint owners of the land in question to the extent of their respective shares, which they inherited from their deceased fathers, namely, Mehmood Sarki and Sher Muhammad Sarki, respectively, and such entries bearing Nos. 11 and 12, dated 16.05.2013 stand mutated on their names in record of rights. He has further contended that the respondents Nos. 2 to 5 are big guns of the area, they have closed relations with the politicians and land grabbers and they illegally occupied the land in question by dispossessing the applicants. He has also contended that the learned trial Court without applying its judicious mind dismissed the complaint merely relying upon the reports of Mukhtiarcar and SHO concerned.

6. Per contra, learned counsel for the respondents Nos.2 to 5 has maintained that neither the applicants have any right and title nor even they have been dispossessed by the respondents from the land in question, as the respondents are in possession of the land in question being its owners, and they purchased the land in question from one Muhammad Ali Khan Sarki, who had purchased it from the relative of the applicants. He has further maintained that such fact was in the knowledge of the applicants much prior to the filing of the criminal complaint, which was rightly dismissed by the learned trial Court holding the same as not maintainable in law. 7 Learned A.G.P. supporting the impugned order has asserted that it reflects from the report of Mukhtiarcar concerned that at no point of time the applicants and their ancestors were in possession of land in dispute, therefore, no question of their dispossession arises. He has further asserted that better course available to applicants is to seek their remedy from competent civil court having jurisdiction.

8. I have given due consideration to the contentions of learned counsel for the parties.

9. It may be observed that a complaint under the Act, 2005 can be entertained by the Court of Session only if some material exists showing involvement of the person(s) complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated efforts by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In order to constitute an offence under section 3(1) of the Act, 2005 the complainant should allege and show before the Court (i) that the complainant is the actual owner (or occupier i.e., in lawful possession) of the immovable property in question; (ii) that the accused has entered into (or upon) the said property; (iii) that, the entry of the accused into (or upon) the said property is without any lawful authority; (iv) that the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant.

10. The case of the applicants is that being ancestral property, they were in possession of land in question but they were dispossessed from it by the respondents Nos. 2 to 5 on 09.06.2015. In this regard enquiry report, submitted by the Mukhtiarcar (Revenue), Thul in compliance of order of trial Court on dated 25.4.2015, is not supportive, to the allegation of the appellants. For the sake of convenience, the relevant portion of said enquiry report is reproduced herein under:

1. That according to Revenue record vide entries Nos.3 and 22 dated 29.11.1984, Mr. Sajjan Daud Sarki (Grandfather of the complainant) was share holder of the agricultural land bearing survey numbers 127, 107, 119, 120, 143, 144 145,146, 149, 150, 165, 166 situated in Deh Khoso, Tapu Thul Purano, Taluka Thul. In the year 2013, the title was changed and transferred without possession in favour of the complainant and other, as reported by the Tapedar of the beat.

2. That out of above, the survey numbers 127, 107, 119, 120 are cultivable and others are uncultivable ,which are under the physical possession of Muhammad Nawaz and others (accused persons) who have purchased the land on possession basis from the other person named Mr. Muhammad Ali Khan Sarki, notable of the area. (Emphasis supplied)

11. It is obvious that the record of rights was mutated in favour of applicants in respect of land in question without possession. Meaning thereby the applicants as well their ancestors were not in possession of land in question when the record of rights was mutated in their favour. The applicants also failed to bring on record any material to establish that at any point of time they were in occupation of land in question; hence, no question of their dispossession by the hands of respondents Nos.2 to 5 arises.

12. For the foregoing facts and reasons, I am of the view that the learned counsel for the applicants on merit has failed to point out any illegality, perversity or nullity in the impugned order calling upon interfering by this Court; therefore, there appears no reason for this Court to interfere into the impugned order, which seems to be a legal order passed in accordance with law, as such this criminal revision application being devoid of merit is dismissed, accordingly.

13. Above are the reasons of my short order dated 21.10.2016. WA/A-142/Sindh Revision dismissed.