NAJMA BIBI Versus ZAKIR ABBASI

AQEEL AHMED ABBASI, J.--- The instant Criminal Petition for Leave to Appeal has been filed against the judgment dated 16.05.2024, passed by Peshawar High Court, Abbottabad Bench, Abbottabad in Cr. Appeal No.268-A/2022, whereby the criminal appeal filed by the petitioner against the order dated 14.10.2022 passed by the passed by Additional Sessions Judge-V, Abbottabad dismissing the complaint filed under Sections 3/4 of the Illegal Dispossession Act, 2005 was dismissed. Hence the instant criminal petition for leave to appeal.

2. Briefly, the facts, as stated and recorded by the learned High Court in the impugned judgment, are that the petitioner filed a complaint under Sections 3/4 of the Illegal Dispossession Act, 2005 ( "the IDA, 2005" ) against the accused respondents. In the complaint, it was alleged that the petitioner was the owner in possession of a house comprising three rooms, a kitchen, a bathroom, and a veranda, situated at Hottar Parri, Berote, District Abbottabad. It was further stated that her household luggage worth Rs. 3,50,000/- was lying in the house, which was locked, whereas she was residing with her sister in Islamabad due to fear of the accused respondents, who are step-brothers of her deceased husband. According to the averments made in the complaint, in June 2022, the accused broke the locks and forcibly took possession. When she came to know about the said incident, she moved an application to the District Police Officer (DPO), Abbottabad, but no action was taken; therefore, she filed the complaint under the Act against the accused respondents.

3. Learned counsel for the petitioner has argued that the petitioner, being the owner in possession of the subject house, was forcibly dispossessed by the accused respondents, therefore, the learned Trial Court and the Hon ble High Court were not justified in dismissing the complaint while holding that no case of illegal dispossession was made out. It has been prayed by the learned counsel that the impugned judgment may be set aside and the complaint of the petitioner may be allowed.

4. Pursuant to Court's Notice, respondent No.1, namely Zakir Abbasi, shown appearance and vehemently denied the allegations of forcible dispossession of the petitioner from the subject house. He has submitted that he is residing in the subject house alongwith his family since inception. Whereas, the petitioner has contracted marriage after death of her husband and residing with her sister in Islamabad as per her own wish and desire. According to respondent No.1, he, along with his brother and four sisters, including the husband of the petitioner, namely Tahir Hussain Abbasi, are the joint owners of the subject property through inheritance and this fact is duly established from the revenue record. According to the respondent No.1 present in Court, respondents have neither illegally dispossessed the petitioner nor forcibly occupied the subject house.

5. The learned Additional Advocate General, Khyber Pakhtunkhwa, has supported the impugned judgment and the order of the Trial Court, and has submitted that prima facie case of illegal dispossession is not made out as rightly held by the Courts below. Whereas, the petitioner can file appropriate proceedings for her share in the property in question, acquired through her deceased husband, Tahir Hussain Abbasi. He further submits that the complaint filed under the Act has been rightly dismissed.

6. Heard the learned counsel for the petitioner, the respondents, also perused the record, the order of the learned Trial Court, and the impugned judgment of the Peshawar High Court in the instant matter. From perusal of the record, it has transpired that upon receiving the complaint, the learned Trial Court ordered an investigation into the allegations and called for the record from the concerned Station House Officer (SHO). The record was received and report was submitted according to which two witnesses, namely Rashid Mehmood and Muhammad Ilyas, supported the complainant's stance that the house was constructed during the lifetime of her deceased husband. However, three witnesses, namely Ghulam Murtaza, Muhammad Haneef, and Muhammad Taj, negated the complainant's allegations by stating that the disputed house belonged to one Ghulam Mustafa Abbasi, the father of the respondents, and after his death, the property in dispute devolved upon his legal heirs, including Tahir Hussain Abbasi (deceased husband of the petitioner). The Jamabandi for the year 2008-2009 and inheritance Mutation No.4373 dated 21.06.2021 duly supported the above-mentioned facts. Upon the demise of the petitioner's husband, his inheritance then devolved upon the petitioner, the respondents, and the sisters of the deceased through inheritance Mutation No.4374 of the same date. A report was called from the Patwari Halqa , which showed that the property comprising Survey Nos.3234, 3231, 3349, 3352, 3313, 3666, and 1509 is joint holding which has not yet been partitioned by metes and bounds. According to the investigative conclusions, the Investigating Officer could not ascertain to whom the house in fact belongs, nor could he conclusively conclude that the petitioner was dispossessed in the mode and manner as alleged in the complaint filed by the petitioner under the IDA, 2005. It is pertinent to note that no specific date, time, or the mode and manner in which the petitioner was allegedly dispossessed from the subject house has been given in the complaint. Furthermore, according to the contents of the complaint, the petitioner herself admitted that she was residing with her sister in Islamabad after the death of her husband and was not in possession of subject house.

7. The IDA, 2005 has been promulgated to safeguard the legitimate owners and occupants of immoveable property from being unlawfully or forcefully deprived of their possession by illegal occupants or grabbers. Since the IDA, 2005 is a special law and has its applicability under the peculiar facts and circumstances, therefore, its provisions are to be construed strictly, keeping in view the scope and application of the provisions of this very Act. The aforesaid Act specifies the category of persons who can approach the Court by filing a complaint under section 3 of the IDA, 2005 which include, " owner " or " occupier " of the immoveable property. As per section 2(c) of the IDA, 2005 occupier means the person who is in lawful possession of a property, "whereas, in terms of section 2(d) of the IDA, 2005, Owner means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law". Thus, any person who being lawful owner or lawful occupier of the property, if illegally dispossessed, can bring a complaint under the provisions of the IDA, 2005. It is by now well settled that in order to make out a case under sections 3 and 4 of the IDA, 2005, complainant has to show a prima facie case before the court (i) "that he is the lawful owner or was the lawful occupier of the subject immovable property;" (ii) that accused had entered into or upon the said property on a particular date, time and the manner, without having any lawful authority;" (iii) that the accused had done so with the intention to dispossess, or to grab or to control or to occupy the said property. Admittedly, except claim of the petitioner regarding her share in the property through inheritance, after the death of her husband, none of the aforementioned ingredients are attracted to make out a prima facie case of illegal dispossession against the accused persons in the instant case. Reference in this regard can be made to the case of Niaz Ahmed and another v. Aijaz Ahmed and others (PLD 2024 SC 1152) .

8. In view of hereinabove factual and legal position as emerged in the instant case, it can be safely concluded that the subject property is a jointly owned by the respondents and their four sisters, with the inclusion of the deceased husband of the petitioner, namely Tahir Hussain Abbasi, who has since died, therefore, the petitioner, being his widow, is also entitled to her share in the subject property by way of inheritance, unless proved otherwise. However, she could not make out a prima facie case of her illegal dispossession from the subject property by the respondents, who are admittedly joint owners and also claim possession of subject property which fact was concealed by the petitioner in her complaint filed under the IDA, 2005. Even from the averments of the complaint, her illegal dispossession from the subject property by the respondents through force has not been established. Petitioner's complaint in this regard was rightly dismissed by the learned Trial Court after investigation and hearing the learned counsel for the petitioner. Order of the Trial Court has been duly approved by the Peshawar High Court vide impugned judgment, which depicts correct factual and legal position.

9. In view of hereinabove facts and circumstances of the case, we do not find any substance in the instant Criminal Petition for Leave to Appeal, whereas, the impugned judgment and the order of the learned Trial Court do not suffer from any factual error or legal infirmity, hence require no interference by this Court. Accordingly, above Criminal Petition for Leave to Appeal is dismissed and leave is refused.

JK/N-5/SC Petition dismissed.