BARKAT ALI Versus Mst. NASEEM
AFTAB AHMED GORAR, J .--- Through instant Crl. Revision Application, applicants Barkat Ali, Liaqat Ali and Sadaqat Ali have impugned order dated 05.03.2019, passed by the learned IIIrd Additional Sessions Judge, Naushehro Feroze Sessions Case No.344/2017 (Complaint No.32/2017) filed by respondents against applicants under Sections 3 and 4 of Illegal Dispossession Act, 2005, which was disposed of.
2. Facts spelt out from instant application are that complainant party have their own agricultural land admeasuring 01-20 acres in S. No.199 in deh Kot Bahadur in which the complainant has constructed their house on 00-03 ghuntas and has constructed Atta Chaki. The accused Mst. Naseem and another filed direct complainant under Sections 3 and 4 of Illegal Dispossession Act, 2005 against applicant. Barkat Ali and others in respect of land measuring 1-20 acre, where the complainant/ respondents party have constructed their houses upon 0-03 ghuntas and Ata Chaki on an area 0-02 ghuntas and an area 0-02 ghuntas near Atta Chaki is cultivated from which the complainant/respondents were dispossessed illegally and occupied by accused persons and were dragged them in the civil suit.
3. Heard learned Counsel for parties and perused the record.
4. Learned Counsel for applicants submits that the order of the trial Court is perverse, non-speaking and contrary to the facts brought on the record therefore, it is liable to be set-aside. He further submits that learned trial Court has passed the impugned order without recording evidence of PWs. He further submits that S. No.199 is a disputed area as the same is comprised on 06-01 acres situated in deh Kot Bahadur Taluka Bhirya. He submits that on 17.02.2018 applicant No.1 and other co-villagers have entered into an agreement with the owner of the plot namely, Sabir Hussain Khanzada in presence of witnesses which agreement is in the field and the said applicant No.1 Barkat is in possession of the land in question since long, such report of Mukhtiarkar is in favour of the applicants that applicants are in possession of the disputed plot. He submits that the respondents have committed offence under the Illegal Dispossession Act, 2005.
5. Learned Counsel for respondents supported the impugned order. He contends that the order of the trial court is based on sound reason. He further submitted that F.C. Suit No.23/2018 filed by applicant Barkat Ali on the basis of agreement was dismissed even second Civil Suit No.70/2018 Re-Irshad Ahmed v. Sabir Hussain was dismissed as withdrawn which has not challenged such facts have been suppressed by the applicant party. He further submitted that conclusion as drawn by the learned trial Court is strictly in accordance with law and settled norms of justice hence, the application is liable to be dismissed.
6. Learned DPG for the State while supporting the impugned order submitted that the prosecution has failed to prove the guilt of the respondents to the hilt, as such the trial Court had no option but to issue directions to the accused persons/ applicant party to handover the possession of the disputed plot to the respondents within 15 days. By contending so, he prayed for dismissal of the application.
7. I have carefully considered the material available on record and have gone through the relevant evidence.
8. Perusal of record reflects that instant complaint has been filed under the provision of Illegal Dispossession Act, 2005 which provides to protect the lawful owners and occupants of immoveable properties from their illegal and forcible dispossession by the property grabbers. Per Mukhtiarkar report, the complainant/ respondents purchased the disputed plot on which the accused persons/applicant party is in illegal possession and also harassing the complainant party/ respondents which they themselves admitted. The respondent Yar Mohammad filed P.C. Suit No.162/2009 against the applicant No.l Barkat Ali which was decreed vide judgment dated 14.11.2009 and decree dated 18.11.2009 which was not challenged by the applicants party. As per documents placed by the respondents they have purchased the land from one Sabir Khanzada which sale-deed was executed between the parties on 14.06.2009. It is further averred that applicant party filed P.C. Suit No.23/2018 for Specific Performance of Contract but subsequently said suit was dismissed as withdrawn and later on they filed P.C. Suit No.70 of 201.8 which too was dismissed under Order VII, Rule 11, C.P.C., such order has also not been challenged by the applicant party before any competent forum. Thereafter counsel for complainant (herein called as respondents) filed application under section 7(1) of Illegal Dispossession Act, 2005 for eviction the accused persons and directing them to handover the possession of disputed plot. The learned trial Court has disposed of the application with warning to accused persons/applicants to stop the harassing and humiliating the complainant party/respondents as the claim of the accused persons/applicant party is disproved and directed to the accused persons to handover the possession of the disputed plot within 15 days otherwise the complainant will be entitled to get possession of the disputed plot through legal agency/SHO or Nazir of the Court.
In the case of Rahim Tahir v. Ahmed Jan and 2 others reported in PLD 2007 SC 423, wherein the Honourable Supreme Court has held that;
"The Illegal Dispossession Act, 2005 is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveals that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The purpose of this special law was to protect the right of possession of lawful owners or occupier and not to perpetuate the possession of illegal occupants."
9. The cited law depicted to protect the right of possession of lawful owners or occupier and not to perpetuate the possession of illegal occupants but from very perusal of the case, I do not find that respondents are in illegal occupation, however, according to report of Mukhtiarkar the accused persons/ applicants have occupied the plot illegally and they are harassing the complainant party/respondents. Since, the claim of the accused persons/applicant party has been disproved by the learned trial Court and Mukhtiarkar reported that complainant party/respondents have purchased the disputed plot on which accused persons are in illegal possession, civil suits filed by the applicants/accused party before Senior Civil Judge-II, Naushehro Feroze were too dismissed, case has been disposed of on merits, hence there is no question of any technicalities therefore, question of Illegal Dispossession Act, 2005 by the respondents does not arise at all.
10. In view of above I am of the considered view that relief in constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains even if for technical reasons impugned order be not strictly justifiable, hence, the learned trial Court has not committed any illegality or material irregularity while passing the order and has rightly disposed of the Crl. Complaint and fully justified to issue directions to the accused persons/applicants to handover the possession of the disputed plot to the respondents which is hereby maintained. Accordingly, this Crl. Revision being devoid of merits is dismissed.
JK/B-27/Sindh Revision dismissed.