Muhammad Amin Versus Court of VIIIth Addl. Sessions Judge
Order
Shamsuddin Abbasi, J .--- By means of this Criminal Revision Application filed under Section 439, Cr.P.C. the applicant has prayed for following reliefs:- "to call Record and Proceedings of I.D. complaint No.2160/2022 from the learned Court of VIIIth Additional Sessions Judge, Karachi, South (Respondent No.1) and allow the Cr. Revision Application according to law".
2. The applicant is the complainant in IDA Complaint No.2160 of 2022 filed under Sections 3 and 4 of the Illegal Dispossession Act, 2005 ("IDA, 2005"), wherein he claims himself to be the lawful purchaser of a godown situated on the ground floor of Plot No.51, Survey Sheet No.1 TL-1.51, old Survey No.PO-3, Sheet No.D-3, measuring 332 square yards, comprising a ground plus three-storied building, located at Jadayil Patel Road, Karachi. It is the case of the applicant that at the time of execution of the sale agreement dated 22.11.2021, he paid an amount of Rs.160,00,000/- to the respondent/proposed accused No.1 as part payment with the undertaking that he would pay an additional amount of Rs.25,00,000/- through cheque and would also transfer Flat No.101, valued at Rs. 115,00,000/- as part of the total sale consideration. It is further averred that in pursuance of the said agreement the respondent/proposed accused No.1 executed a registered General Power of Attorney in favour of the applicant, however, in December 2021 the brother and sister of the respondent/proposed accused No.1, namely Ramzan Ali and Hameeda Bano filed a suit before the High Court seeking cancellation of gift deed, declaration and permanent injunction against the respondent/proposed accused No.1 and during pendency of the said suit on 25.01.2022, the respondent/proposed accused No.1 handed over physical and partial possession of the subject property to the applicant. The applicant averts that due to the pendency of the aforesaid suit, he issued a legal notice to the respondent/proposed accused No.1 expressing his inability to pay the remaining sale consideration. Instead of resolving the matter, the respondent/proposed accused No.1 filed Civil Suit No.817 of 2022 seeking cancellation of the sale agreement and during the pendency of the said suit the respondent/proposed accused No.1 along with two unknown persons broke open the doors of the godown and forcibly occupied the same, unlawfully evicting the applicant's tenants. The applicant claims that he reported the incident to the police, however, no action was taken compelling him to file the present complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005.
3. The learned trial Court after hearing the applicant's counsel and perusing the report of the police dismissed the complainant through order dated 11.04.2023 against which the present Crl. Revision Application has been filed.
4. It is, inter-alia contended on behalf of the applicant that the impugned order is bad in law and fact and without application of a conscious judicial mind, hence the same is liable to be set-aside and the matter may be remanded to the learned trial Court to decide the same on merits after providing an opportunity to the parties to adduce their evidence. It is next submitted that the learned trial Court has failed to take into consideration the fact that the godown in question was purchased by the applicant through a valid agreement against payment of handsome amount whereupon the respondent /proposed accused No.1 executed registered General Power of Attorney in his favour, however, later on he became dishonest and forcibly occupied the property. It is also submitted that the respondent /proposed accused No.1 has broken the locks of the godown and forcibly occupied the same by forcibly dispossessing his tenant. Per learned trial Court has overlooked the applicant's entitlement over the property in question and dismissed the complaint without recording the evidence. The learned counsel while emphasizing his submissions has submitted that findings recorded by the learned trial Court are against the law and pronouncements of Hon'ble apex Court and based on misreading and non-reading of record, hence liable to be reversed. In support he has placed reliance on the case of Nawab v. Ihsan Ali Khan and 3 others (2025 MLD 633).
5. Respondent No.1, present in person, admits the execution of the sale agreement, however, he contends that the applicant failed to pay the remaining sale consideration in accordance with the terms and conditions of the said agreement and with mala fide intention and ulterior motives filed the instant complaint merely to harass and humiliate him and to avoid making the remaining payment. He supports the impugned order and submits that the learned trial Court has rightly dismissed the complaint without taking cognizance observing that the matter pertains to civil nature.
6. The learned Additional Prosecutor General also supports the impugned order and submits that civil litigation between the parties is pending and that instead of approaching the competent Civil Court for enforcement of sale agreement, the applicant has filed the present complaint. It is further submitted that the impugned order is based on a fair evaluation of the record and, therefore, calls for no interference.
7. Illegal Dispossession Act, 2005 [IDA, 2005] is a unique statute to safeguard the legitimate owners and occupants of immovable properties from being unlawfully or forcefully deprived of their possessions by illegal occupants. This Act specifies the category of persons who can approach the Court of competent jurisdiction for seeking relief i.e. the owner or occupier. Definitions of both these expressions namely "occupier" and "owner" have been provided in clauses (c) and (d) respectively of Section 2 of the Illegal Dispossession Act, which are reproduced below:-
"2(c) "occupier" means the person who is in lawful possession of a property;
"2(d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law."
8. Reviewing the above clauses, it is noted that any person who being lawful owner or lawful occupier of the property, if dispossessed illegally or unauthorizedly, can bring a complaint under the provisions of IDA, 2005, whereby the complainant must prove the presence of an unlawful act, accompanied by criminal intent, and if he fails to disclose such essential elements, the Court is not obligated to mechanically register the complaint and initiate proceedings. The main purpose of IDA, 2005 is to curb the activities of the property grabbers and to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by property grabbers. In like cases, the actions cannot be categorized as constituting an offense under the definition provided in IDA, 2005. This distinction requires the Court to carefully examine the material presented on record at the initial stage and then make an order, based on application of conscious judicial mind, just to curb the practice of registration unnecessarily complaints, which could cause distress and harm to the accused individuals.
9. Admittedly, the entire case of the applicant is founded upon a sale agreement and as per the police report no such incident as alleged in the complaint has taken place. There is also no denial of the fact that the brother and sister of the respondent/proposed accused No.1 have filed a suit seeking cancellation of the gift deed executed in favour of the respondent/proposed accused No.1. The record further reflects that the respondent/proposed accused No.1 has also instituted a suit against the applicant for cancellation of the sale agreement on account of alleged breach of its terms and conditions. It is well settled that an agreement to sell does not confer any right, title or interest in the property in respect of which such agreement is executed. The applicant himself admits that he has stopped making the remaining payment. His stance that the remaining amount was withheld due to the pendency of the suit filed by the brother and sister of the respondent/proposed accused No.1 seems to be after through particularly when the police report supports the claim of the respondent/proposed accused No.1 that he neither broke open the locks of the premises nor illegally dispossessed the applicant's tenants. On query posed, the learned counsel for the applicant admits that the title documents of the property in question are still lying with the respondent/proposed accused No.1.
10. It is a well settled that the provisions of the Illegal Dispossession Act, 2005 are not meant to resolve civil disputes relating to title, ownership or contractual obligations arising out of agreements to sell. The Act has been enacted to provide speedy relief in cases of forcible and unlawful dispossession and cannot be allowed to be misused for exerting pressure in matters where the dispute is essentially civil in nature and pending adjudication before competent Civil Courts. It has been consistently held by superior Courts that where possession is claimed on the basis of an agreement to sell, which does not confer any right, title or interest in the property and where civil litigation between the parties is already pending, proceedings under the Illegal Dispossession Act, 2005 are not maintainable. In such circumstances, invocation of criminal jurisdiction amounts to abuse of the process of law. It has further been held that disputed questions of title and possession particularly when supported by rival civil suits cannot be decided in summary proceedings under the Illegal Dispossession Act, and the aggrieved party must seek redress before the competent Civil Court. Reliance in this behalf may well be made to the case of Zahoor Ahmed v. The State and 03 others (PLD 2007 Lahore 231), wherein it has been held as under:-
"(i) The Illegal Dispossession Act, 2005 applied to dispossession from immovable property only by property grabbers/Qabza Group / land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the 4 W.P. No.1384 of 2008 manner of execution of his design which may expose him as a property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immoveable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property.
(iii) A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court."
11. Upon careful examination of the record, this Court has reached the conclusion that the controversy involved is purely factual in nature, which can only be adjudicated upon after a full-fledged trial and recording of evidence by a competent Civil Court. Guidance is taken from the case of Secretary to the Government of Punjab v. Ghulam Nabi (PLD 2001 SC 415), wherein it has been held as follows:-
"It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which, necessitate taking of evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts".
12. For what has been discussed above, I am of the considered view that no case attracting the provisions of IDA, 2005 has been made out. The learned counsel for the applicant has not raised any question of law that may require consideration by this Court in exercise of its Revisional Jurisdiction, scope of which is limited and confined to correction of jurisdictional defect, patent illegality or irregularity affecting the merit of the case. I find that the learned trial Court has passed the impugned order after due application of mind and careful appreciation of available material, hence calls for no interference by this Court. In view thereof, the instant Criminal Revision Application No.123 of 2023 is bereft of any merit stands dismissed along with all pending applications where the case law cited by the learned counsel for the applicant and distinct and distinguishable from the facts and circumstances of the case in hand, hence the same is not helpful to the applicant. The applicant, however, shall be free to approach a Court of competent jurisdiction and agitate his claim in a suit before a Civil Court having jurisdiction.
JK/M-42/Sindh Revision dismissed.