Order against illegal possession of property.

O R D E R.
Complainant Muhammad Yousaf filed a private complaint against respondents under Section 3/4 of Illegal Dispossession Act, 2005 with the submission that he purchased 13-Marlas land from Ghulam Rasool etc, vide sale deed No.2449/1 dated 30.11.2012 and also obtained the possession. Subsequently mutation No.5716 dated 11.12.2012 was also incorporated in this respect. Complainant sold 8- Marlas land to Nooran Bibi etc, vide sale deed No. 249 dated 28.01.2013 from the said land, which mutation No.5770 dated 13.02.2013 was sanctioned. Said Nooran Bibi etc had made construction there on. Later on complainant vide sale deed No.359/1 dated 08.02.2013 purchased adjoining land from Iqbal Bibi etc which is measuring 13-Marlas 3- Sarsahies and also obtained possession. Mutation No.5772 dated 18.02.2013 was also sanctioned. Complainant is owner of land measuring 18-Marlas 3-Sarsahies in Mohallah Ganj Shakar Colony Rakh Pakpattan. Respondents belong to Qabza Group. On 13.04.2013 at 9-00 a.m complainant alongwith Muhammad Ashraf and Nazar Farid were present at his land when, Zulfiqar Ali armed with pistol 9-MM and the other respondents having two of them rifles and four of them Kassies emerged there. Respondent No.1 raised Lalkara and asked other respondents to forcibly occupy the land of complainant and constructed fourwall there on. Respondents also arranged bricks etc and started construction over the land of complainant. Complainant alongwith his witnesses made a protest and tried to stop respondents but respondent No.1 while pointing his pistol 9-MM towards complainant and witnesses threatened to kill them. Respondents forcibly and illegally took possession and occupied complainant’s land. Respondents also made aerial firing. Due to fear, complainant and his witnesses came back from the spot. Complainant preyed that matter be proceeded against respondents/ accused.

1. Zulfiqar Ali filed an application U/S 265-K Cr.P.C. He contended that he is not illegal occupant. He did not obtain possession illegally and forcibly. He explained that complainant got registered 18- Marlas land without obtaining possession of the same. It is added that seller of the said land had no possession and likewise complainant was also not delivered possession of the said land. It is contended that report dated 03.06.2014 by SHO Police Station Farid Nagar Pakpattan can be seen in this regard. Respondents/accused stated that on 26.09.2007, he purchased plot measuring 10-Marlas vide registered sale deed, when his wife namely Rukhsana Bibi, vide registered sale deed, purchased adjoining plot which is also measuring 10-Marlas and, as such, they are in possession of land measuring 20-Marlas. They constructed fourwall and also had constructed two rooms there. It is also stated that they are residing in the said plot and he had got installed electricity meters, telephone connection and water connection in his name. It is explained that he and his wife are in possession of said plot since 2007. When complainant purchased some plot without its possession in year 2012. Respondents/accused submitted that complainant lodged this complaint while stating a false story. The facts stated by complainant are not proved on record. Therefore, there is no chance of conviction of respondents/accused. Alleged charges by complainant against respondent/accused are groundless. Complaint lodged by complainant against respondent U/S 3 and 4 of Illegal Dispossession Act 2005 is not maintainable. It is prayed that as such petition U/S 265-K Cr.P.C. be accepted and respondents/accused be acquitted of the charge.
2. S.3 of Illegal Dispossession Act 2005, provides that no one shall enter into or upon any property to dispossession, grab, control or occupy it without having any lawful authority to do so when the intention to dispossess, grab, control or occupy the property from owner of occupier of such property. It is provided in the said section that whoever contravenes the provisions of the sub-Section (1) shall, without prejudice to any punish to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the dictum of the offence shall also be compensated in accordance with the provision of section 544 of the Code.
3. S.5 of the Act 2005, provides that upon a complaint the court may direct the officer-incharge of police station to investigate and complete the investigation and forward the same within fifteen days to the court.
4. Provided the court may extend that time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-Section.
5. (2) On taking cognizance of a case the court shall proceed with the trial from day-to-day and shall decide the case with 60-days and for any delay sufficient reasons shall be recorded.
6. (3) The court shall not adjourn the trial for any purposes unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.
7. Learned counsel for respondents/accused argued that as per provisions of S.5 of the Illegal Dispossession Act 2005, report was called from Incharge of police station. SHO P.S Farid Nagar, Pakpattan had reported that Zulfiqar Ali and his wife namely Rukhsana Bibi had purchased land measuring 10-Marlas each, the said land is falling within three Khasra numbers. Zulfiqar Ali had purchased the said land from Muhammad Hanif who gave him possession of disputed land. Later on, Muhammad Yousaf etc purchased land measuring 3-Kanals 6-Marlas 6-Sarsahies from Ghulam Rasool etc. Said Ghulam Rasool had no possession at the spot. Muhammad Yousaf etc did not get possession at the spot. Later on, Muhammad Yousaf etc got possession of land of Zulfiqar Ali, which was vacant land and was falling in Khewat No.6. Muhammad Yousaf etc sold 8-Marlas land to Nooran Bibi etc from the said disputed land. It is explained that Zulfiqar Ali purchased land through registered sale deeds but did not get the possession as per Khewat. He got possession of the other Khewat. He had no possession at the spot as per his sale deed. It is further explained that Muhammad Yousaf etc purchased land from Ghulam Rasool etc which included streets and Mohallah. It was not an approved colony and the land was not transferred in favour of TMA. Ghulam Rasool etc, from whom Muhammad Yousaf etc purchased land had also not possession of the same and likewise they did not deliver possession of the said land to Muhammad Yousaf etc.
8. Learned counsel argued that U/S 3(2) of Illegal Dispossession Act 2005, case involving dispute as to possession of immovable property between two individuals with no allegation that accused belonged to land mafia, Qabza group or property grabbers would not fall under purview of S.3(2). Learned counsel referred MLR 2013 criminal 121. Learned counsel referred PLJ 2013 Lahore 43 and argued that private complaint U/S 3 of Act, cannot be filed against co-sharer when possession over disputed portion of land was not provided, illegal dispossession when penal actions were to be initiated against respondent cannot prima facie be proved, thus trial court, rightly dismissed complaint, as petitioner neither produced copies of the judgment allegedly passed in favour of his father by Civil Court nor any Revenue Court. It is also argued that when both the parties were claiming their possession over the disputed house on the basis of documents executed in their favour. Proper forum to decide the controversy with regard to genuineness of documents and ownership of the disputed house would be the civil court, where suits were already pending 2014 M L D 370 (Sindh). Learned counsel placed reliance on 2010 S C M R 1254 and submitted that as question of title of property was already pending before competent court of civil jurisdiction before filing of the complaint, therefore, august Supreme Court declined to interfere in the matter. After decision of civil suit in favour of appellant, he could approach the court under S.4 of Illegal Dispossession Act, 2005. It is explained that civil suit filed by Zulfiqar Ali against Muhammad Yousaf etc is pending in the civil court.
9. Learned counsel for complainant was asked by the court that when complainant claims his possession over the disputed plot, if he has any electricity bill, telephone bill or water connection in his name. Learned counsel could not produce any of the said documents to prove prima facie possession of complainant over the said plot.
10. Both the parties are claiming their possession over the disputed plot on the basis of sale deeds executed in their favour. Zulfiqar Ali had filed a civil suit against Muhammad Yousaf etc regarding this controversy which is pending adjudication in the civil court. Proper forum to decide the controversy with regard to ownership as well as possession of disputed plots would be the civil court, where suit was already pending.
11. This is a case involving dispute as to possession of immovable property between two individuals. As per report of SHO, it is not found that respondents/accused belonged to land mafia, Qabza group or property grabbers and, as such, case would not fall under purview of S.3 (2) of Illegal Dispossession Act 2005.
12. For what has been discussed above, complaint filed U/S 3 and 4 of Illegal Dispossession Act 2005 is not maintainable. I while accepting the application under section 265-K Cr.P.C, acquit accused namely Zulfiqar Ali and Rukhsana Begum of the charge levelled against them. File be consigned to the record room after its due completion.