MUHAMMAD SIDDIQUE vs THE ADDITIONAL SESSIONS JUDGE, HYDERABAD and 5 others
This Criminal Revision Application challenges the order dated 16-8-2011 passed by the Additional Sessions Judge, Hyderabad, whereby interim possession of a bungalow was handed over to the complainant under the Illegal Dispossession Act, 2005. The core legal question was whether interim possession could be granted under the Act merely on the basis of title documents without establishing the factum of illegal dispossession through proper investigation and evidence. The Sindh High Court held that the trial Court erred in handing over possession based on title documents and surmises without investigating the actual illegal dispossession. The Court set aside the impugned order and remanded the matter back to the trial Court for proper investigation regarding illegal dispossession and to hear or implead the applicant who claimed ownership and possession. The key principle laid down is that proceedings under the Illegal Dispossession Act, 2005 require a concrete determination and investigation into the factum of illegal dispossession rather than a summary adjudication based solely on title documents.
- Whether interim possession under the Illegal Dispossession Act, 2005 can be granted solely on the basis of title documents without proving illegal dispossession?
- Is a proper investigation by the officer-in-charge regarding the factum of illegal dispossession mandatory before passing orders under the Illegal Dispossession Act, 2005?
- Can a person claiming title and possession be heard or impleaded in proceedings under the Illegal Dispossession Act, 2005?
- Section 5, Illegal Dispossession Act 2005
- Section 7(1), Illegal Dispossession Act 2005
ORDER
1. ' MUHAMMAD SHAFI SIDDIQUI, J.---This Criminal Revision Application has been, filed pursuant to the impugned order dated 16-8-2011 passed by IVth Additional Sessions Judge, Hyderabad in Criminal Complaint No,37 of 2010.
2. ' The applicant claims that though he is in possession of the title documents of the subject property but the trial Court neither issued any summons .Nor the complainant/Suriya Kausar impleaded him as a party in this case and ex parte orders were passed therein. The applicant also moved an application before the trial Court to implead them as a party, however same was not entertained by the trial Court nor even certified copies were provided to the applicant. Hence the applicant filed this Criminal Revision Application wherein the order dated 16-8-2011 was impugned pursuant to which interim possession of the subject. Bungalow was handed over to the complainant/Suriya Kausar pursuant to an application for Illegal Dispossession Act, 2005.
3. ' In terms of section 5 of Illegal Dispossession Act, 2005, a report was submitted by the officer incharge/SHO wherein he has investigated the issue of illegal dispossession and recorded evidence of few witnesses some of them are Akhtar Hussain and Shoaib, as submitted by learned counsel for respondent No,2.
4. Learned counsel for Respondent No, 2 failed to show evidence of any witness who has deposed that complainant/Suriya A Kausar had been illegally disposed. It was all on the basis of title for which report had been submitted, even the trial Court in the impugned order dated 16-8-2011 in the last paragraph has observed as under:-- "I have heard the learned counsel for the complainant, perused documents of the bungalow in question, report of SHO and Mukhtiarkar, which reveals that the complainant is real owner of the aforesaid bungalow and the respondents have illegally occupied the said bungalow without any title documents and at present as per report of Process Server, the respondents are not residing in the bungalow in question and have put the lock to the bungalow, the complainant is appearing in the court since 2010 looking the above situation I allow application under section 7(1) of Illegal Dispossession Act 2005 and direct the SHO Nasim Nagar to take the possession of the aforesaid bungalow to the complainant after breaking the locks of the door of bungalow and handover the same to the complainant."
5. It appears that pursuant to impugned interim order, the subject premises was handed over to the complainant/Suriya Kausar only on the basis that she was in possession of the title documents, however the mandate of such application and Act 2005 was to determine the factum of illegal dispossession. Such issue of her illegal dispossession was neither discussed in the order nor there was any investigation by officer-incharge. Thus proper investigation regarding the fact of illegal dispossession is also missing as proper investigation has not been made and even the impugned order appears to have been passed on the basis of surmises and conjectures.
6. ' Be that as it may, in view of the above, I set aside the impugned order dated 16-8-2011 and remand the case to the trial Court for concluding proper investigation by officer incharge regarding "illegal dispossession" of complainant/Suriya Kausar and only then a proper speaking order touching the question of illegal dispossession of the complainant shall be passed by the trial Court in accordance with law. The applicant who claims to be the owner of subject property on the basis of certain title documents and also claims to be in possession of the subject Bungalow regarding which the impugned order, whereby interim possession of the said Bungalow was handed over to the complainant, may also be heard and if necessary, may be impleaded as a party in the proceedings. Office is directed to send the R&Ps back to the trial Court.
7. ' The Criminal Revision Application stands disposed of in the above terms along with pending application.
Cited by 1 case
- GUL MUHAMMAD vs The STATE and another 2016 P Cr. L J 366