2019 Y L R 2025
[Balochistan]
Before Abdullah Baloch, J MUHAMMAD AZAM and 4 others ---Petitioners
Versus
NABI BAKHSH and another ---Respondents
Criminal Revision Petition No.115 of 2018, decided on 8th April, 2019.
(a) Illegal Dispossession Act (XI of 2005) ---
----S. 7 ---Eviction and mode of recovery as interim relief ---Scope ---Petitioners assailed order
of trial court whereby it allowed the application under S. 7 of Illegal Dispossession Act, 2005
and directed the petitioners to hand over peaceful poss ession of the disputed property---
Validity ---Both parties had claimed their ownership and possession over the disputed
property--- Complainant had relied on revenue record existed in his name--- Petitioners
claimed that it was their ancestral property; that a house and masjid existed over the disputed
land; that revenue record in the name of complainant was a product of fraud/ misrepresentation; that a civil suit regarding disputed property was pending and that earlier complaint filed by complainant's brother was rejected ---Held; complainant had to establish
his ownership as well as last possession over the land in question and thereafter forcible vacation by accused, being members of land mafia or land grabbers ---Impugned order was
delivered by over -sighting the relevant record as well as peculiar circumstances of the case---
Scope of S.7, Illegal Dispossession Act, 2005 was limited and the court had to form its opinion tentatively without touching the merits of the case, but the Trial Court exceeded such limit by forming its opinion to such extent which amount to final decision of the case ---
Revision was allowed; order passed by trial court was set aside and the parties were directed to maintain status quo.
(b) Illegal Dispossession Act (XI of 2005) ---
----S. 7---Eviction and mode of recovery of property as interim relief ---Scope ---Scope of S.
7, Illegal Dispossession Act, 2005 was limited and the court had to form its opinion tentatively without touching the merits of the case.
Ghulam Mohey -ud-Din Sasoli for P etitioners.
Abdul Rasheed Awan and Muhammad Haneef Sumalani for Respondent No.1.
Date of hearing: 4th April, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---Though this petition, the petitioners have assailed the
order dated 10th November 2018 ("the impugned order ") passed by learned Sessions Judge
Mastung ("the trial Court"), whereby the application under Section of 7 of Illegal
Dispossession Act, 2005 filed along with main complaint under Sections 3, 4 of Illegal Dispossession Act, 2005, was allowed and the petit ioners was directed to hand over the
peaceful possession of the land in question to the complainant/ respondent No. 1 bearing Khawat No.01, Khatooni No.100, Khasra No.667, situated at Mouza Spozand Dasht Tehsil and District Mastung ("land in question").
2. Facts of the case are that the respondent No.1/complainant filed a complaint under
Sections 3, 4 of Illegal Dispossession Act, 2005 against the petitioners, stating therein that the complainant/respondent No.1 is lawful and recorded owner of land in que stion. It is
further averred in the complaint that on 10th July 2018, the complainant/ respondent No.1 came to know that the petitioners have illegally entered in the land in question and started to build a wall without any legal authority. Hence, the comp lainant/respondent No.1 along with
witnesses Sohbat Khan and Muhammad Ismail went to the spot and asked the petitioners to restrain from their illegal act of construction, but they being the members of the land Mafia, armed with deadly weapons launched att ack upon the complainant and assaulted him, the
complainant/respondent No.1 lodged FIR No.22/2018 under Sections 504, 506, 447, 427, P.P.C. against the petitioners, while at the time of their arrest they were also found in possession unlicensed arms, hence separate FIR Nos.22, 23 and 24 of 2018 for offence under
Section 13- E of Arms Ordinance were lodged against them. It is further averred that the act
of the petitioners falls within the ambit of Sections 3, 4 of Illegal Dispossession Act, 2005
and lastly prayed for restoration of his possession over the land in question.
Along with main complaint, the complainant/respondent No.1 has also filed an
application under Section 7 of Illegal Dispossession Act, 2005, for interim relief.
3. Record reveals that afte r submitting the report by the concerned revenue authorities,
the learned trial Court took the cognizance of the matter and issued notices to the petitioners, who accordingly made their appearance before the learned trial Court and after hearing arguments on application under Section 7 of Illegal Dispossession Act, 2005, the same was
allowed and the petitioners were directed to hand over the peaceful possession of the land in question to the complainant/respondent No.1, vide impugned order 10th November 201 8.
Whereafter, instant petition has been filed before this Court and vide order dated 19th November 2018, the petition was admitted for regular hearing and also the operation of impugned order was suspended.
4. Heard the learned counsel and perused the available record with care and caution.
Perusal of record reveals that both the parties have taken divergent plea and are claiming their ownership and possession over the land in question. The complainant/respondent No.1 is claiming the ownership of the land in question and has made reliance over the revenue
record existed in his name, while the petitioners are claiming that the land in question is their ancestral property and has come to their share through family settlement. Besides, they
possess the same si nce long and also their houses and a Masjid is existed over the same. The
petitioners have also claimed the mutation entries in the name of the complainant/respondent
No.1 as product of fraud and misrepresentation. It has also been observed that with regar d to
land in question a civil suit is also pending before the learned Qazi Dasht Mastung. Besides, earlier similar complaint of under Sections 3, 4 of Illegal Dispossession Act 2005 was filed
against the petitioners by the brother of the complainant, which was rejected. It has been
established that the dispute over the property in question existed in between parties since
long, which resulted into filing of civil as well as criminal proceedings.
5. All these facts show that the dispute over the land in ques tion had already existed in
between the parties prior to filing of complaint, but however, the trial Court has to see whether earlier the complainant/respondent No.1 was in possession of the land in dispute and he was dispossessed by the petitioners or onl y the revenue entries are existed in his name.
Admittedly, the complainant has to establish his ownership as well as his last possession over the land in question till 10th July 2018 and thereafter his forcible vacation from the land in question by the pet itioners being the member of Land Mafia or Land Grabber. In order to
prove such facts, evidence is required to be recorded from both the sides. The impugned order of the learned trial Court directing for vacating the petitioners from the land in question
is erroneous being delivered by over -sighting the relevant record as well as the peculiar
circumstances of the case. Even otherwise, the scope of Section 7 of the Illegal
Dispossession Act, 2005 is limited and the Court has to form its opinion tentatively w ithout
touching the merits of the case, but the trial Court has exceeded such limit by forming his opinion to such extent that amounts to final decision of the case and it would certainly effect the merits of the case.
For the above reasons, the petition is allowed. The impugned order dated 10th
November, 2018 passed by learned Sessions Judge Mastung is set -aside and the parties are
directed to maintain the status -quo in respect of the land in question. However, the learned
trial Court is directed to exped ite the trial and to conclude the same at the earliest, but not
later than a month.
The observations made hereinabove are purely tentative in nature, which shall not
influence the merits of this case as well as the civil matters of parties pending before the
Civil Courts.
SA/24/Bal. Revision allowed.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,
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