FAZAL KARIM vs THE STATE and 10 others

' ASIF SAEED KHAN KHOSA, J.---The petitioner and respondents Nos.5 to 11 are accused persons in a complaint instituted by respondent No,4 under section 3 of the Illegal Dispossession Act, 2005 which complaint is presently pending before the learned Sessions Judge, Nankana Shaib. On 24-1- 2007 the learned Sessions Judge, Nankana Sahib and directed the local police to restore the possession of respondent No,4 over the relevant property which order has by now been implemented. The petitioner had earlier on filed Writ Petition No,901 of 2007 before this Court seeking a declaration that the complaint filed by respondent No,4 under section 3 of the Illegal Dispossession Act, 2005 was not maintainable but the said writ petition had been disposed of by this Court on 2-2-2007 as the petitioner wanted to approach the Court of the learned Sessions Judge, Nankana Sahib in the first instance seeking dismissal of the said complaint. Subsequently on 6-2-2007 the petitioner had submitted an application before the learned Sessions Judge, Nankana Sahib seeking dismissal of the relevant complaint but that application of the petitioner was dismissed by the learned Sessions Judge, Nankana Sahib vide order, dated 21-2-2007. Hence, the present writ petition before this Court.

2. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

3. The impugned order passed by the learned Sessions Judge, Nankana Sahib itself mentions that the petitioner and respondent No,4 are co-sharers in the same Khewat. It is also admitted before this Court by the learned counsel for all the parties that at the time of institution of the complaint under section 3 of the Illegal Dispossession Act, 2005 by respondent No,4 against the petitioner and respondents Nos. 5 to 11 Civil Court was already seized of the dispute between the parties regarding the property in issue and the matter of possession of the relevant property, was being regulated by the learned Civil Court through a stay. Order. It has already been held by a Full Bench of this Court in the case of Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lahore 231 that a complaint under the Illegal Dispossession Act, 2005 is not maintainable vis-a-vis disputes over possession of property between co-sharers and also in cases where the matter of possession of the relevant property is being regulated by an order of a Civil Court it is, thus, evident that the complaint under section 3 of the Illegal Dispossession Act, 2005 filed by respondent No,4 against the petitioner and respondents Nos.5 to 11 was not maintainable and thus, the proceedings undertaken by the learned Sessions Judge, Nankana Sahib in that regard were without lawful authority and of no legal effect. This writ petition is therefore, allowed with no order as to costs and the impugned order, dated 21-2-2007 passed by the learned Sessions Judge, Nankana Sahib is set aside. The learned Sessions Judge, Nankana Sahib is directed to pass a formal order dismissing the complaint filed by respondent No,4 against the petitioner and respondents Nos.5 to 11 under section 3 of the Illegal Dispossession Act, 2005 as not maintainable and simultaneously to recall his earlier order, dated 21-1-2007 and to get the possession of the petitioner and respondents Nos.5 to 11 over the relevant property restored through the local police.

Civil Miscellaneous No, 02 of 2007

4. As the main writ petition has been allowed and disposed of by this Court today, therefore, the present miscellaneous petition seeking interim relief has lost its relevancy. Disposed of.