Illegal possession of property

2018 PCrLJ 1341 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 3Illegal possession of propertyComplaint under Illegal Dispossession Act, 2005Pre-conditions

Any one found committing offence described in S. 3 of the Act, would be amenable to prosecution under the provisions of Illegal Dispossession Act, 2005

No past record of the accused needed to be gone into by the court.

2018 YLRN 2 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3 & 4Illegal possession of propertyParties were co-owners of the property in questionEffect

Trial Court dismissed complaint on the ground that respondents were not property grabbers/land mafia/qabza group and that there existed a civil dispute between the parties with regard to the property in question, therefore, provisions of Ss.3 & 4 of the Illegal Dispossession Act, 2005 were not attracted

Validity

Record showed that complainant/ appellant was widow (second wife) of real owner of the disputed property and respondent was son of real owner (late) from his first wife of the disputed property and living therein

Report, which was called from the concerned SHO showed that respondents were ready to give share of the disputed property to the complainant

Civil suit was also filed by the deceased husband of the complainant-appellant, which was pending against the respondents in the court of competent jurisdiction

Trial Court was not justified to dismiss the complaint on the ground that respondents were not property grabbers/land mafia/qabza group

If the respondents did not fall in the category of 'land mafia' and 'qabza group', even then they could be prosecuted if it was proved that they had committed act which had fallen within the ambit of S.3 of the Act

Admittedly, dispute between the parties was of civil nature as there was civil litigation pending between the parties

Civil courts were courts of ultimate jurisdiction for deciding civil rights of the parties

Complaint under Illegal Dispossession Act, 2005 did not disclose any allegation which would attract the penal provisions of S.3 of the Act as nowhere it was alleged that the respondents were not residing in the disputed property

Circumstances established that present dispute did not fall within the scope of Illegal Dispossession Act, 2005

Revision was dismissed in circumstances.

2017 MLD 1143 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 3 & 4Illegal possession of propertyComplaint and civil suitMaintainability

Trial Court dismissed the complaint on the ground that civil litigation was already pending between the parties regarding same property

Validity

Facts of the case showed that the version of the parties about ownership of the disputed land was at variance regarding which civil litigation was already pending involving the title of the land

Admittedly, parties were co-sharers of the land in question being legal heirs of the original owner of the land

Claim of the petitioners was that respondents had occupied 50,000 sq. ft. of the land forcibly by constructing a wall

Record showed that petitioners had filed civil suit against the respondents for the same relief of possession of 50,000 sq ft, which they sought in the complaint

Circumstances of the case showed that an attempt had been made by the petitioners to convert a civil dispute between the parties into a criminal case, which was rightly struck down being abuse of process of law by the Trial Court

Civil dispute could not be allowed to be converted into criminal case for implicating co-sharers of the land in question as this would be misuse of the provisions of the Act

Civil court was a competent forum to resolve the said issues after recording evidence

Appeal was dismissed.

2016 SCMR 1931 SUPREME-COURT Judicial Precedent

S. 3Illegal possession of propertyComplaint under Illegal Dispossession Act, 2005MaintainabilityCivil litigation with regard to illegal dispossession from immoveable property pending in court between the parties

Irrespective of any such civil litigation that may be pending, where an offence, as described in the Illegal Dispossession Act, 2005, had been committed, the proceedings/complaint under the said Act could be initiated as the same would be maintainable in law. [Findings in Zahoor Ahmed v. The State (PLD 2007 Lahore 231) and Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) were held to be not sustainable in law].

2016 SCMR 1931 SUPREME-COURT Judicial Precedent

S. 3Illegal possession of propertyComplaint under Illegal Dispossession Act, 2005

Offenders that could be prosecuted under the Illegal Dispossession Act, 2005 could not be restricted to only those who possessed the credentials and antecedents of 'land grabbers' or 'Qabza Group'

Provisions of S. 3 of the Illegal Dispossession Act, 2005 clearly demonstrated that whosoever committed the act of illegal dispossession, as described in the said Act against a lawful owner or a lawful occupier, he could be prosecuted under its provisions without any restriction. [Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) held to be good law]

[Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah v. Abdul Manan (2012 SCMR 1533) declared to be not good law].

2016 PLD 769 SUPREME-COURT Judicial Precedent

S. 3Illegal possession of propertyComplaint under Illegal Dispossession Act, 2005Pre-conditionNature of accused

Any person who illegally dispossessed, grabbed, controlled or occupied property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005

For prosecuting an accused under the said Act, the complainant did not have to first establish that the accused possessed the credentials or antecedents of being a professional land grabber or member of a Qabza Group

All that the Court had to see was whether the accused nominated in the complaint had entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority

[Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) held to be good law]

[Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah v. Abdul Manan (2012 SCMR 1533) declared to be not good law].

2016 YLR 2760 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3 & 4Specific Relief Act (I of 1877), Ss. 9, 42 & 54Illegal possession of propertyComplaint and civil suitMaintainability

Trial Court dismissed to complaint on ground that civil litigation was already pending between the parties regarding same property

Complainant had claimed to be the owner of the subject land by way of sale by the actual owner thereof, who had sworn his affidavit before the Trial Court and supported said claim stating that he had sold out the land to the complainant and that the complainant was in peaceful possession thereof when his brother/accused had dispossessed him; said affidavit had controverted the contentions raised by the accused

Trial Court must have considered said affidavit prudently, and ignoring the same was a serious infirmity committed by the court

Complainant thus having established his ownership of the land, recording of evidence to determine the allegations of forcible dispossession by the accused person was essential

Civil suit and direct complaint could be filed by the same party simultaneously

Through civil suit any party could approach the concerned civil court for determination of his legal rights over property in dispute, and through criminal complaint the offender was to be punished for the offence

Mere pendency of the civil suit regarding declaration etc. would not debar and prohibit the complainant from availing other efficacious remedy by approaching the court having competent jurisdiction

Trial Court, while dismissing present complaint, therefore, had committed serious illegality and material infirmity

High Court, setting aside the impugned order, remanded the case for decision afresh on merits thereof.

2016 PCrLJ 786 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S 3Illegal possession of propertyComplaintCognizanceCriteria

Court while taking cognizance of complaint had only to consider the existence of a prima facie case either on the basis of averments made n the complaint and the statements of complainant on oath.

2016 PCrLJ 786 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 3Illegal possession of propertyComplaintCognizanceScopeComplaint was dismissed by the Trial Court without summoning of accusedValidity

Court while taking cognizance of complaint had only to consider the existence of a prima facie case either on the basis of averments made in the complaint and the statements of complainant on oath

Complainant herself was not having the clear title with regard to the disputed property

Complainant had failed to establish her stand so taken with regard to forcible dispossession

All ingredients or elements must be made out before it was established that the offence had been committed by the accused person

If even one of the ingredients or elements was missing, then no offence would be made out

Trial Court had dismissed the complaint on sound footings

Complainant had remedy before the civil court

Revision was dismissed in circumstances.

2016 PCrLJ 786 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 3Illegal possession of propertyComplaintPre-requisites

Complainant in order to constitute an offence had to allege and show that he was actual owner (or occupier i.e. in lawful possession) of immovable property in question; that accused had entered into (or upon) the said property; that entry of accused into (or upon) the said property was without any lawful authority and accused had done so with the intention to dispossess (to grab or to control or to occupy) the complainant.

2016 MLD 1238 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3 & 4Illegal possession of propertyComplaintComplaint by attorneyParties to dispute co-owners of the property in question

Trial Court dismissed complaint filed by the attorney on the ground that attorney was not competent to file direct complaint under Illegal Dispossession Act, 2005

Validity

Complainant and accused jointly purchased the subject land on equal shares

Status of both the parties was that of 'joint owners'

Co-owner could seek restoration of possession from other co-owner subject to establishing his/her possession

Nothing was on record that land jointly purchased was partitioned

Complainant had not indicated as to from which area of joint holding the accused was in 'unlawful possession' or from which portion of such holding he had been dispossessed

Nothing was on record with regard to involvement of accused in illegal activities or their belonging to the gang of 'land grabbers or land mafia'

Mere words of one to be 'land grabbers or land mafia' would not be sufficient to dress him up with such status

Accused had filed a civil suit which was dismissed but appeal of the same was pending for adjudication

Civil courts were courts of ultimate jurisdiction for deciding civil right of the party and status of a document

Present dispute did not fall within the scope of Illegal Dispossession Act, 2005

Complaint under the Act would be equated with that of an FIR

Attorney did not fall within the definition of "witness/complainant"

Attorney could not file the FIR or a criminal complaint

Anybody could bring the law into motion but not as an attorney

Revision was dismissed in circumstances.

2014 MLD 1021 PESHAWAR-HIGH-COURT Judicial Precedent

S. 561-AIllegal Dispossession Act (XI of 2005), Ss.3, 5, 6 & 7Illegal possession of propertyQuashing of order, petition forComplainants were owners in possession of disputed propertyReport of S.H.O., coupled with revenue record supported the contention of complainant

Right of petitioners, if any had to be seen after recording of evidence; and that too after finalization of civil suit filed by them

Civil suit for possession through partition was filed much after filing of complaint under Illegal Dispossession Act, 2005

No possession was regulated by the civil court at the time of filing of complaint

If the case of illegal occupation was not already pending before any other forum on the date of enforcement of Illegal Dispossession Act, 2005, same would squarely fall within the ambit of said Act

Occupier in peaceful possession could not be dispossessed as per provision of S.3 of Illegal Dispossession Act, 2005

For the purpose of attracting the provisions of S.3, the court was required to examine as to whether the occupier of such property was in its lawful possession; and accused had entered upon the property unlawfully; and to dispossess the occupier

Even co-owner, could not dispossess another co-sharer, without suit for partition or due course of law

Impugned order, which was rightly passed, was maintained and petition under S.561-A, Cr.P.C. being devoid of force was dismissed, in circumstances.

2014 YLR 1791 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3, 4 & 5Illegal possession of propertyCognizance of offenceInvestigation and procedure

Provisions of Illegal Dispossession Act, 2005, being a special law, was only applicable in cases, wherein the person complained against was found to be not having title thereto (property); that he had taken possession by use of force; that he had taken over the property without due course of law; and that such person or persons belonged to group of land grabbers

Application/ complaint under Illegal Dispossession Act, 2005, could only be entertained, if there was prima facie material against nominated accused

Civil nature dispute, in no way could be allowed to be converted into criminal offence

Provision of S.3 of Illegal Dispossession Act, 2005, was applicable only to land grabbers

Court was required to examine as to whether case had been made out attracting the provision of the S.3 of the Act; that the property was movable property; that the person was the owner of the property, or same was in his lawful possession; that accused entered into or upon property unlawfully; and that such entry was with the intention to dispossess.