ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Revision Appln. No.S- 84 of 2021.  

Date of hearing                                Order with signature of Judge.

1.For orders on office objection as flag A.

2.For hearing of  main case.                     

 

Applicant

(Hamid Ali Mahessar) :       Through Mr.Imtiaz Ali Panhwar, advocate  a/w applicant.

The State                      :        Through Mr. Ali Anwar Kandhro,  Addl. P.G.

Respondents No.3,4,   :     Through Mr. Mushtaque Ahmed Chandio, advocate

6,7 & 9.                                   a/w respondents.         

 

Respondents No.8       :     Through Mr. Dad Muhamamd M. Magsi, advocate.

                                                   

Date of hearing            :       13.11.2023.

 

O R D E R.

 

                        Through this criminal revision application, applicant Hamid Ali Mahessar has assailed  order dated 24.8.2021 passed by 1st Additional Sessions Judge, Mehar (trial Court) vide Cr.Misc. Appln. No.12 of 2021  re:  Hamid Ali Mahessar  v. Qurban Ali and others whereby  the complaint in terms of Section 3 and 4 of Illegal Dispossession Act 2005  filed by the applicant was dismissed  on the ground that report submitted by Mukhtiarkar concerned as well as SHO was contradictory to the facts  and circumstances  of the complaint, hence  instant revision application has been maintained.

                        The case of the applicant is that he is the owner of Survey No.239 (1-17) acres and Survey No.237 (1-03) acres situated in deh Roni Tapo Khondi Taluka Mehar District Dadu.  Such entry in revenue record  of rights was mutated vide Entry No.108  Deh Form VII B.

                        After calling report from the concerned Mukhtiarkar and SHO,  the trial Court dismissed   the complaint vide impugned order  dated 24.08.2021.

                        Learned Additional P.G supported the impugned order and opposed the revision application in hand.

                        Mr.Dad Muhammad Magsi, advocate for the respondent No.8 has no objection  to grant of instant application as the respondent No.8 has settled the dispute with the applicant outside the Court.

            Mr. Mushtaque Ahmed Chandio, advocate for the respondents No.3, 4, 6, 7 and 9  while respondent No.5 is not in attendance.  As reported, he is in abroad. Mr.Chandio submits that basically land belongs to government  which was granted in favour of answering respondents for which Revenue Appeal No. Nil of 2021 filed by them is still pending adjudication.  Whereas  the applicant has also filed civil suit for declaration and possession which too  is pending adjudication  before Senior Civil Judge Mehar, hence  the complaint filed  by him is not maintainable and the trial Court has rightly rejected the same.

            I have heard learned counsel for the parties and gone through the material made available before me on record.

            Mukhtiarkar Mehar submitted report dated 04.5.2021 before the trial Court whereby he had categorically mentioned that according to record the Entry No.80 of VF VII A out of Survey No.237 and 239 of deh Roni Tapo Khondi Taluka Mehar  is entered in the name of Rajib Ali. Subsequently  it was sold out to applicant vide Entry No.108 of VF VII B  out of Survey No.237  and 239, therefore, the applicant is owner of the said land.  As far as remaining land is concerned, same being barren is lying uncultivated, however, same is in possession of the applicant. 

            The contention of learned counsel  for the respondents to the effect that   basically the survey numbers  captioned above  as area of 1-11 acres whereas applicant himself  has encroached upon excessive  piece of land comprising 6 ghuntas which actually belongs to answering respondents, therefore, no case for interference  is made out.

            I am of the view  that  as laid down by the  Apex Court in the case of Gulshan Bibi  v. The State (PLD 2016 S.C 739), there is no legal bar for appreciation of civil and criminal proceedings side by side, hence complaint is maintainable. As far as excessive area as claimed by the respondents is concerned, it is upto trial Court to get  the demarcation of land through concerned department and after verifying the record as well as measurement  to be done by the concerned, shall decide  fate of complaint after recording evidence of parties as well as provide equal opportunity of hearing to both sides. Observation made by the trial Court as well as  supported by the Addl. P.G  are not getting support from the report submitted by the SHO P.S Mehar.

            Accordingly and in view of above, instant application is allowed.  Impugned order is set aside. Case is remanded to the trial Court with directions to proceed with the case after completion of legal formalities and then decide the fate of complaint according to the evidence ought to be adduced by the parties before it  within shortest possible time under intimation to this Court.

 

JUDGE 

Shabir

 

 

 

 

JUDGE 

Shabir