IN THE HIGH COURT OF SINDH

AT LARKANA

Cr. R. A. S-18of 2021          :           Muhammad Naseer Jamali &Others vs.

S.H.O. Qubo Saeed Khan & Others

For the Applicant                 :           Mr. Rafique Ahmed K. Abro, Advocate

For the Respondents          :           Mr. Ashique Ali Jatoi, Advocate

                                                            Mr. Aitbar Ali Bullo, D.P.G.

Date of hearing                    :           10.02.2022

Date of order                         :           10.02.2022

ORDER

Agha Faisal, J.The present revision has impugned the order of the learned Additional Sessions Judge-I, Shahadadkot dated 03.03.2021, whereby while dismissing a complaint, under sections 3, 5 & 7 of the Illegal Dispossession Act, 2005 (hereinafter referred to as the "Act"),the learned Judge appears to have given declaration of title and also rested his finding thereupon.

2. Briefly stated, the complainant has filed a complaint under the Act against six accused, however, the learned trial Court was of the view that since one of the proposed accused is also co-sharer in the property, therefore, no case for illegal dispossession is made out.

3. Per applicants’ counsel, the finding of the learned Trial Court is patently illegal and contradicted by the very record relied upon.  Learned D.P.G supported the contention of the applicants’ counsel and submitted that there is no document on record to demonstrate that one of the accused was a co-sharer in the property. Learned counsel for the private respondents / accused admitted that name of one of the accused was not mentioned as a co-sharer in the relevant report but was shown as possession holder of the property and that litigation has been re-initiated by the said accused to assert the title in respect of the property.

4. Heard and perused.  The learned Trial Court has placed reliance upon Mukhtiarkar and S.H.O’s reports in order to rest its finding. This Court has carefully perused the said reports and there is no declaration or recognition of title of the said accused in the said reports in respect of the subject property.  Furthermore, it is admitted by the respondents’ counsel that while an earlier suit in such regard was withdrawn, the said accused is filing / has filed fresh proceedings to assert title in respect of the said property.  Be that as it may, it is apparent that under no circumstance could the said accused be considered to have had any title in the property at the time when the impugned order was rendered or at the present time.

5. The entire case of the applicants was that accused have illegally dispossessed them and are in occupation / possession of the said property and if anything is demonstrated by the Mukhtiarkar’s report it is that the accused are in possession of the said property.  Furthermore, the role of remaining accused has not been dilated upon by the learned Trial Court and the entire dismissal of the complaint has been rested on erroneous finding of the fact with respect to one accused.

6. It is the considered opinion of this court that the finding of the learned trial court are contradicted by the record relied upon and even otherwise extraneous to the issue there before. Notwithstanding the foregoing the issue of dispossession is independent of title and the learned trial court appears to have erred in disregarding the same.

7. In view of hereinabove it is observed that the impugned order cannot be sustained in law and same is hereby set aside.  The matter is remanded back to the learned Trial Court for adjudication afresh in accordance with the law.  Present Criminal Revision Application is allowed in the above terms.

                                                                    JUDGE