IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Revision Appln. No. S- 37 of 2023.
Habibullah Jhatial. …………...Applicant.
Versus
4th Additional Sessions Judge, Dadu,
& others. ……..….Respondents.
Messrs Nadir Khan Burdi and Saifullah Jhatial, Advocates for applicant.
Mr. Qurban Ali Ago, Advocate for respondents No.2 to 4.
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 21.07.2023.
Date of order: 21.07.2023.
ORDER
Amjad Ali Sahito, J- Through this revision application, applicant Habibullah has assailed the order dated 07.06.2023, passed by learned 4th Additional Sessions Judge, Dadu, whereby the learned Judge has dismissed a complaint, filed by the applicant under provisions of Illegal Dispossession Act, 2005.
2. The case of the applicant as disclosed by him in complainant filed under Sections 3, 4, 5, 6 and 8 of the Illegal Dispossession Act, 2005, is that, he is owner of agricultural land out of survey No.541, 653 and 654, ad-measuring 02-20 acres situated in Deh Thariri Mohabbat of Taluka Mehar, which he cultivates through labor. It is further case of applicant that on 18.11.2021 he came to the land along with Niaz Hussain Khoso, Mukhtiar Ahmed Khoso and Muzafar Hussain Jhatial, they saw accused Muhammad Yousif, Abdul Aziz, Ibrahim accompanying 5 unknown persons, who extended threats to applicant not to take crop of land and again on 21.11.2021 the accused persons came to land duly armed with weapons and forcibly dispossessed applicant him land and also taken away crop.
3. On such complaint, the learned Additional Sessions Judge, after going through the relevant record and perusing the reports of SHO and the Mukhtiarkar concerned came to conclusion that the provisions of the Illegal Dispossession Act, 2005, do not attract to the case, as such the impugned order was passed by dismissing the complaint, leaving the applicant at liberty to approach Revenue Forum.
4. Heard learned counsel for the applicant as well as learned counsel for respondents and gone through the material available on record and the impugned order as well.
5. The learned counsel for the applicant while arguing his case has re-iterated the same facts and grounds as urged in the memo of complaint to the effect that the land in question was illegally occupied by private respondents, though they have no any right or title over property in question and that they have illegally occupied over it.
6. The version of the accused/ respondents is that they are co-owners and co-sharers in the land in dispute by inheritance. This contention of the accused/ respondents gets support from the report of Mukhtiarkar concerned.
7. The reports of Mukhtiarkar as well as SHO concerned are on the record. The SHO has reported that according to his enquiry, the land in question is registered in the name of applicant, and respondents are in its possession. The SHO has based his report on the statements of “nekmards” of locality. However, his report never reflects that the respondents/ accused belong to Qabza or land mafia. Whereas, the report of Mukhtiarkar reflects that, some of the land in question stands entered in the name of applicant’s elders and some in the names of accused/ respondents and their elders. However, report of Mukhtiarkar also does not reveal that the accused/ respondents belong to Qabza group or land mafia.
8. It has come on record that both the parties are co-sharer in the land in question. The learned trial Judge has also observed in the impugned order that as per report of Mukhtiarkar Revenue Mehar the applicant/ complainant as well as accused/ respondents are share-holders in land in question.
9. It is pertinent to mention that the Illegal Dispossession Act, 2005, is a special legislation to shelter the lawful owners and occupants of immoveable properties from their illegal dispossession of their properties by property grabber, who does not have any lawful authority. It will be helpful if Section 3 of the said Act is reproduced, which reads as:
"3. Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property 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 owner or occupier of such property.
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of offence shall be compensated in accordance with the provisions of section 544 of the Code.”
From the bare perusal of the above provision of law, it is clear that a person who has any lawful authority cannot be considered as disposer and grabber of the property. The object and spirit of legislation of Illegal Dispossession Act, 2005, is to curb the activities of the property grabber. Preamble of the Act (ibid) manifest that it aims to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers.
10. In the instant case, there is no denial to this fact that both the parties are co-sharer, and civil litigation taken place between the parties in respect of the property in question. In such a situation, it cannot be said that the applicant has been dispossessed from the property by the accused/ respondents and being co-sharer, provision of Section 3 of Illegal Dispossession Act, 2005, is not applicable to the case of the applicant. In this respect, I would like to take reliance from a case of this Court reported as Muhammad Aslam v. Imamuddin Ahmed and 7 others (2013 MLD 1444). Similarly, a full bench of Lahore High Court in the case reported as Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lah. 231), held that the Illegal Dispossession Act, 2005, has no application to cases of dispossession between co-owners and co-sharers.
11. Moreover, the learned trial Judge has further observed that applicant/ complainant filed Civil Suit No.87/2008 (old) F.C. Suit No.36/2022 (new number) in the Court of Senior Civil Jduge K.N. Shah and such suit was dismissed vide judgment and decree dated 29.06.201r, as such he had filed appeal and appeal was allowed vide judgment dated 28.01.2015, whereby the Mukhtiarkar/ Assistant Commissioner were directed to make correction the entries in the relevant record. As such, the learned trial Judge while dismissing the complaint left the applicant at liberty to approach revenue forum for correction in relevant record pursuant to judgment passed by learned 2nd Additional District Judge, Dadu. In view of above factual position, the learned trial Court has rightly observed and come to conclusion that the matter is of civil nature and the provisions of the Illegal Dispossession Act, 2005, do not attract to the case.
12. It appears that the applicant/ complainant has tried to give colour of criminal action to a bona-fide civil dispute. He is seeking possession of the land in question, for which adequate and effective remedy is available to him and being co-owners or co-sharers the respondents cannot be dragged in a proceeding under Illegal Dispossession Act, 2005.
13. Further perusal of impugned order reflects that it was passed after giving due consideration to the facts and the relevant law applicable, hence it does not requires to be interfered by this Court. Result thereof, this criminal revision application is hereby dismissed leaving the parties at liberty to seek remedy available before the appropriate forum.
Judge
Ansari