KHALID ZAIN Versus LAL BUX
FAHIM AHMED SIDDIQUI, J.--- Through the instant criminal revision application the applicants have assailed the impugned order dated 03.08.2013, passed by the learned III-Additional Sessions Judge, Hyderabad in Criminal Complaint No.07/2013 (Lal Bux versus SSP Hyderabad and others). As per impugned order, the cognizance was taken against the applicants and they were directed to furnish surety of Rs.50,000/- each with P.R. Bond in the like amount.
2. The main ground taken into the instant criminal revision application is that the order of taking cognizance is unlawful since the applicants and respondent No.1 are co-sharer in the property in question as they are brother inter se and inheritors in property of their father. It is also contended in the instant criminal revision application that earlier the criminal complaint bearing No.69 of 2012 was filed by the respondent No.1 which was dismissed with certain observations but the respondent No.1 has filed fresh complaint, wherein the impugned order was passed, without fulfilling observations in earlier complaint with identical prayer.
3. The learned counsel for the applicants in support of the instant application has preferred his submissions at length. The base of his arguments is that although major portion of disputed survey number was agreed to be given to the respondent No.1 but still it is the property under co-ownership of the applicants and respondent No.1 and property has yet not been partitioned. According to him, it is an admitted position that the property has not yet been partitioned, as the respondent No.1 himself has filed a suit for partition being F.C. Suit No.60 of 2011, which is pending before the competent forum below. He submits that at the time of disposal/dismissal of the earlier complaint, it was observed that the applicant is at liberty to file fresh application in respect of any other house from which he might have been dispossessed but inspite of filing fresh complaint in respect of any other house, he has filed a complaint regarding same and identical properties with almost identical prayer.
4. Conversely, the learned counsel for the respondent No.1 submits that it is an admitted position that the applicants and respondent No.1 are brothers, inter-se as well as family settlement is also admitted but the dispute was arising when the applicants started to sale out the properties without proper partition. He submits that the respondent No.1, under family settlement, got 1 acre 15 ghuntas in Survey No.108/4, in which the house of respondent No.1 was built and the applicants have illegally dispossessed the respondent No.1 from the said property as such the ID complaint is properly filed and cognizance was rightly taken. He submits that report of SHO available on page No.93 and report of Mukhtiarkar available at page No.95 are sufficient to establish that respondent No.1 was illegally dispossessed. He emphasized upon the report of Mukhtiarkar wherein it is stated that applicant was illegally dispossessed. He submits that previous complaint was dismissed on technical ground wherein it was directed to file fresh application after making correction and fresh application was filed after making such correction.
5. Learned D.P.G. submits that the impugned order is not a speaking order as such the case may be remanded to the trial Court for passing afresh and speaking order. He submits that he is unable to support the impugned order in present form.
6. I have heard arguments and gone through the relevant record available before me. In the instant matter certain facts are admitted which are as under:
(i) The applicants and respondent No.1 are brothers inter-se and respondent No.1 earlier filed a complaint being criminal complaint No.69 of 2012 in respect of alleged dispossession, which was dismissed vide order dated 19.12.2012.
(ii) The parties have reached to some settlement and documents of such settlement (Mata Sata Jo Dastavez) executed between the parties which was executed on or about 23.10.1996 and the same is a registered document.
(iii) Although the parties have reached at some settlement but actual and factual partition of the properties did not take place as such the respondent No.1 has filed suit for partition being F.C. Suit No.603 of 2011.
7. The earlier complaint filed by the respondent No.1 was dismissed by II-Additional Sessions Judge, Hyderabad, through order dated 19.12.2012. I would like to reproduce the said order which is as under:
"Heard both the learned counsel. With their assistance file has been perused. The complainant and accused are brothers inter se. Per para No.3 of the complaint, there are houses constructed over survey No. 108/4 (1-39 acres), 108/5 (1-08 acres), 47/2 (2-00 acres) and 43/2 (2- 23 acres). Out of which, one has been allegedly occupied by the accused. Simultaneously there is copy of suit showing that all these survey numbers are disputed. Said suit is pending adjudication before the competent Civil Court. Thus, there is no case under section 3 of the Illegal Dispossession Act, 2005. Accordingly the complaint is dismissed. However, the complainant may file complaint in respect of any other house for which he might have been dispossessed and exclusively owned by him, if so advised."
8. It is pertinent to mention here that in earlier complaint the leading prayer of the respondent No.1 is mentioned as prayer clause 'a' which is reproduced as under:
"That this Honorable court may kindly be pleased to pass order, for the registration of the complaint under section 3 of the Act, and take the cognizance of the complaint under section 4 of the Illegal Dispossession Act, 2005. The complainants are entitled for REPOSSESSION of the same premises from where he was DISPOSSESSED ILLEGALLY so also the agriculture land bearing S. Nos. 108/4, 108/5, 47/2, 43/2 approximately admeasuring 7-30 acres along with the payment of wheat crop."
9. It is also pertinent to mention here that at the time of dismissal of the earlier complaint, it was observed that the complainant may file another complaint in respect of some other property from which he has been dispossessed but the complainant has filed the present complaint with identical prayer. For the sake of ease and brevity, I would like to reproduce the leading prayer of the present complaint which is as under:
"That this Honorable court may kindly be pleased to pass order, for the registration of the complaint under section 3 of the Act, and take the cognizance of the complaint under section 4 of the Illegal Dispossession Act, 2005. The complainant are entitled for REPOSSESSION of the same premises from where he was DISPOSSESSED ILLEGALLY so also the agriculture land bearing S. Nos. 108/4, 108/5, 47/2, 43/2 approximately admeasuring 6-22 acres along with the payment of wheat crop."
10. If we place both the prayer clauses in juxtaposition, it will clearly show that both the prayer clauses are almost identical. It is important to point out that no house is described from which respondent No.1 was dispossessed in leading prayer clause of the present complaint. The learned counsel for the respondent No.1 has emphasized upon the report of SHO dated 21.05.2012 and report of Mukhtiarkar dated 18.05.2012 available at pages Nos.93 and 95 respectively, but it was worth noting that both the reports pertain to previous complaint which have already been disposed of. As far as the report of SHO in present complaint is concerned, the same was called twice by the trial Court which were furnished vide report dated 18.02.2013 and 13.07.2013, available at page Nos.99 and 101, respectively. From report of SHO it appears that the parties are brothers inter-se and suit is pending in respect of the property in question. It is also evident from the report that house built on a portion of survey No.148/4 was actually built by the deceased father of the parties and report does not speak about any dispossession from the same. It is admitted position that the property has yet not been partitioned and suit for partition is pending. Besides, house in question has not been described within the settlement (Mata Sata Jo Dastavez) while some share of the applicants in disputed survey number is admitted within the said document.
11. The upshot of the above discussion is that complaint of respondent No.1 regarding the same property has already been dismissed as such the cognizance by the trial Court on almost same prayer clause as to the earlier complaint is not warranted under the law, hence, the impugned order is set aside and the instant criminal revision application is allowed. The above are the reasons for my short order dated 03.12.2018.
SA/K-9/Sindh Petition allowed.