2012 M L D 673
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MOHI UD DIN ---Petitioner
Versus
MUHAMMAD IFTIKHAR SIDDIQUE and 4 others ---Respondents
Criminal Revision No.40 of 2011, decided on 20th January, 2012.
Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4, 5 & 7 ---Prevention of illegal possess ion of property, investigation and procedure,
eviction and mode of recovery as an interim relief ---Petitioner claimed to be bona fide
purchaser of the property in question, and on the basis thereof claimed his title and possession
to be legal but Trial Cou rt, allowing complainant's interim application, restored possession of
premises to the complainant while exercising powers under S. 7(4) of Illegal Dispossession
Act, 2005 ---Validity ---Trial Court arrived at the conclusion that the report submitted by the
Station House Officer (SHO) supported the version of the complainant that there was history
of breaking of locks of the complainant's house, which was being illegally occupied by the
petitioner, with further observation that petitioner had failed to produc e any documentary
evidence in respect of ownership of the house in question ---Complainant was one of the
legal heirs of the woman, in whose name the property was allotted by concerned authorities
and complaianant claimed to be in possession of the propert y in question since the time of
allotment ---Petitioner had annexed certain mutation entries, whereby, property in question
was transferred in his name, while complainant had placed documents on record which
revealed that civil litigation was pending betwee n complainant and legal heirs of another
person, concerning the property in question, from which it tentatively appeared that
complainant was in possession of disputed property, but fact that whether complainant was
dispossessed illegally or forcibly was y et to be established during course of trial ---Trial Court
exercised powers under S. 7 of Illegal Dispossession Act, 2005, without initiation of the trial,
without sending notices to the petitioner and without affording him any opportunity of being
heard ---Petitioner being in possession of the disputed property had a right to be heard, before
an order for his dispossession was made ---Trial Court, while passing order for restoration of
possession in favour of complainant, made reliance on report of S.H.O. of the area which was
different and not from the concerned area ---S.H.O. was arrayed as respondent in the
complaint, and for that reason Trial Court had made an error and ignored the requirement of
law---Order of restoration of possession made by Trial Court in favour of complainant being
in contravention of relevant provisions of law, same was set aside ---Revision petition was
accepted, in circumstances.
Muhammad Qahir Shah for Petitioner.
Liaquat Ali for Respondent.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J.---Through instant petition the petitioner Mohiuddin
assailed order dated 14th April 2011 of Sessions Judge, Quetta, whereby the trial court while
entertaining a complaint made under sections 3, 4, 5 of the Illegal Dispossession Act, 2005
(Act 2005), all owed interim application, and restored the possession of the premises to the
complainant/respondent No.1, while exercising powers under section 7(4) of the Act, 2005. It
was contended that the trial court failed to consider that the property in question wa s
purchased by the petitioner, and his partner Imran Khan after payment of sale consideration,
and got the possession through due course. It was further contended that respondent No.1 was
not in possession of the house in dispute, nor any one was disposses sed from the premises by
him (petitioner). Furthermore, the respondent No.2 Wali Jan, being the attorney of the seller,
entered into sale agreement with him on behalf of the original owners. The petitioner further
contended that despite existence of these facts the trial court made an order in their absence,
which was neither legal, nor just. Furthermore, the trial court did not collect any evidence
about forcible dispossession of respondent No.1 complainant from the premises in question,
rather, only rely ing on the report submitted by S.H.O. Police Station Civil Lines, Quetta,
allowed the application, which is in contravention of law. It was further his contention that
the disputed house situated within the jurisdiction of Police Station Industrial Area, b ut the
report was submitted by S.H.O. Police Station Civil Lines, Quetta, which has no jurisdiction
in the area nor the report submitted by him can be relied upon, the trial court made an error
while relying on it. It has been prayed that the order dated 1 4th April, 2011 be set aside, and
the application filed under section 7 of the Act, 2005 be dismissed.
2. The learned counsel for the parties were heard, and record was perused. While arguing the
matter the learned counsel for the petitioner was of the view that he was condemned unheard,
as no notice was served on either of the respondents. Further the report was filed by S.H.O.
Police Station Civil Lines, Quetta, who was not the relevant person; rather report was to be
called from Police Station Indu strial Area, in whose jurisdiction the premises in question
located. It was further his contention that the impugned order was made before
commencement of the trial, thus an illegal order. While replying to the arguments the learned
counsel for respondent No.1 was of the view that the respondent No.1 was owner, and
occupier of the premises in question. It was further his contention that the premises in
question is legally owned by him, and the remaining legal heirs of Mst. Aqeela Sultana, the
actual owner. It was his argument that the complaint has not yet been decided finally, while
tentative order has been made by the trial court, therefore, the only question before this court
is that who was in possession of the property in question. The learned counsel for respondent
No.2 contended that he (respondent No.2) sold the property to the petitioner being attorney of
the previous owners, while the keys were handed over to him, who after opening the lock
handed over the possession to the petitioner, therefore, n o case was made out under
provisions of the Illegal Dispossession Act, 2005. The learned State counsel fully supported
the order of the trial court. According to him there is no illegality in the order.
3. The perusal of the impugned order reveals that t he trial court while concluding the matter
arrived to the conclusion that the report submitted by S.H.O. supports the version of the
complainant, and there is history of breaking of locks of the complainant's house, being
illegally occupied by the respon dents, (respondent No.2 and the petitioner). With further
observation that the respondents, i.e. present petitioner and respondent No.2 have failed to
produce any documentary evidence in respect of ownership of the house in question;
therefore, an order wa s made for restoration of possession in favour of the
complainant/present respondent No.1. According to the complaint filed by respondent No.1
Muhammad Iftikhar Siddique it appears that the complainant claimed himself to be one of
the legal heirs of Syed Aqeela Sultana, in whose name the property was allotted on 23rd
August 1961, by the concerned authorities. The respondent No.1 claimed to be in possession
of the house in question, bearing khasra No.45, measuring 3109 square feet, situated at Ram
Bagh Stre et, Zarghoon Road, Quetta, since time of allotment. It was contention of the
respondent No.1/complainant that he was out of station when locks were broken, and
respondents Nos.1 and 2 illegally occupied the premises in question without any right, and
title. It is to be noted that several documents were annexed with the instant petition, while
several documents were filed by the respondent No.1 thereafter. All these documents disclose
that they bear address of respondent No.1 as House bearing Municipal No.9 -14/ 111 -112,
Ram Bagh Street, Zarghoon Road, Quetta, the house in dispute in present case. The petitioner
claimed to be bona fide purchaser of the house in question, and on basis of it claimed his
title, and possession to be legal. He annexed certain mut ation entries, whereby the property
bearing khasra No.15, measuring 3109 square feet was transferred in his name on 29th July,
2010. The additional documents placed on record by the respondent No.1 reveal that civil
litigation is pending between legal hei rs of Qazi Muhammad Ibrahim, wherein the respondent
No.1, along with remaining legal heirs of Mst. Aqeela Sultana were party to the suits. The
litigation pertains to some property, which also include khasra No.45, on which the disputed
house is situated. A part from title of the property, which is to be determined by the competent
court, the only fact which tentatively appeared from these documents that the respondent
No.1 was in possession of the premises in question. But the fact that whether he was
dispos sessed illegally or forcibly is yet to be established during course of trial. The matter in
hand is that whether respondent No.1. is entitled for the relief as provided in section 7 of the
Act, 2005, which reads as under: --
"(7) Eviction and mode of reco very as an interim relief. ---(1) If during trial the court is
satisfied that a person is found prima facie to be not in lawful possession, the court shall as an
interim relief direct him to put the owner or occupier, as the case may be, in possession.
(2) Where the person against whom any such order is passed under subsection (1) fails to
comply with the same, the court shall, notwithstanding any other law for the time being in
force, take such steps and pass such orders as may be necessary to put the own er or occupier
in possession.
(3) The court may authorize any official or officer to take possession for securing compliance
with its orders under subsection (1) the person so authorized may use or cause to be used
such force as may be necessary.
(4) If any person, authorized by the court, under subsection (3), requires police assistance in
the exercise of his power under this Act he may send a requisition to office -in-charge of a
police station who shall on such requisition render such assistance as m ay be required.
(5) The failure of the officer -in-charge of police station to tender assistance under subsection
(4) shall amount to misconduct for which the court may direct departmental action against
him."
Keeping in view this provision the relief p rovided therein can only be granted in favour of a
person "if during trial the court is satisfied that a person is found prima facie to be noted in
lawful possession." In present case the petitioner is claiming his right being of a bona fide
purchaser, and claim his possession thereof. Though there is denial of the fact on the his
possession thereof. Though there is denial of the fact on the part of the
complainant/respondent No.1, but these facts are to be determined by the trial court on
concluding the tr ial. As far as, restoration of possession during course of trial is concerned, it
is the issue in hand. It is observed that the trial court exercised powers under section 7 of the
Act, 2005 without initiation of the trial, even without notice to the petiti oner, or remaining
respondents, and without affording them any opportunity of being heard. In present case
admittedly the petitioner is in possession of the premises in question, thus in the
circumstances have a right to be heard, before making an order fo r his dispossession.
Furthermore, it is observed that in the complaint S.H.O., Police Station Industrial Area,
Quetta was arrayed as respondent No.3, being the concerned Police Station. But the trial
court called report from S.H.O. Police Station Civil Lin es, Quetta, and also made reliance
thereon, while passing the order for restoration of possession, but the record is silent that why
report was called from a Police Station other than the mentioned in the complaint. The trial
Court has made an error while acting as such, and ignored the requirement of law, which is
not proper. Therefore, in the circumstances, no reliance can be made on this Report.
4. In view of the above discussion, the order of restoration of possession made by the trial
Court is in co ntravention of relevant provision of law, thus not sustainable. The instant
petition is hereby accepted. Impugned order dated 14th April, 2011 of Sessions Judge,
Quetta, is hereby set aside. The trial Court is directed to proceed with the matter strictly i n
accordance with law, and conclude the proceedings within two months from receipt of this
order.
M.W.A./3/Q Revision accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.