Yousaf vs Bahader Sher

2010 Y L R 1997

[Peshawar]

Before Abdul Aziz Kundi and Mazhar Alam Khan Miankhel, JJ

YOUSUF---Petitioner

Versus

BAHADAR SHER and another---Respondents

Writ Petition No. 1843 of 2010, decided on 1st June, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3/4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Illegal dispossession---Petitioner had impugned the order of the Trial court vide which his complaint filed under Ss.3/4 of Illegal Dispossession Act, 2005 was dismissed---Available record of the case never suggested that any unlawful and illegal act of dispossession of the petitioner was committed by respondent which was a sine qua non for taking cognizance under S.3 of Illegal Dispossession Act, 2005---Site plan prepared by police would reveal that the disputed piece of property apparently appeared to be the part and parcel of the property owned by the respondent-- -Nothing was available on record except an unregistered sale-deed to the extent of 1-1/4 Marlas which alone would not be sufficient to reflect the ownership as well as possession of the petitioner over the property---If at all the petitioner felt himself aggrieved, he could approach the competent court to have a declaration of his title and possession of the property---In absence of any piece of evidence reflecting ownership or possession over the property, one could not be given a licence on the strength of an unregistered sale-deed to claim ownership---Petitioner who had taken possession of disputed property few days before the complaint had alleged unlawful and illegal dispossession from said property without any specific evidence---For making a case under Illegal Dispossession Act, 2005, one should come forward with a positive evidence of his lawful ownership with possession; or a lawful possession in any capacity and then his unlawful and illegal dispossession from the property which the petitioner failed to show---Petition was dismissed being meritless, in circumstances.

Aziz-ur-Rehman for the Petitioner.

ORDER

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein has impugned the order dated 2-2-2010 of learned Sessions Judge, Swabi vide which his complaint under sections 3/4 of the Illegal Dispossession Act, 2005 was dismissed.

2.Learned counsel for the petitioner contended that he purchased an area of 1-1/4 Marla from his cousin namely Abduz Zaman against sale consideration of Rs.30,000 vide unregistered sale-deed dated 6-11-2009. Similar area was his ancestral property and the respondent No.1 unlawfully and illegally dispossessed the petitioner of the said property. He further contended that the order of the learned Sessions Judge, Swabi was against the law and record of the case. There was ample evidence reflecting the possession of the petitioner as well as his dispossession from the property which was not properly considered by the learned Sessions Judge while dealing with his complaint.

3.Learned counsel for the petitioner was heard and record of the instant petition was perused with his assistance. The same would reveal that the property in dispute is situated within the Abadi Deh having no Revenue Record. The petitioner has claimed himself to be the owner of 2 1/2 Marla of the property on the strength of his inheritance as well as purchase from his cousin vide unregistered sale-deed dated 16-11-2009 against the sale consideration of Rs.30,000. Whereas the respondent No.1 claims it to be the part and parcel of his house measuring 9 Marla, 1 Sarsai and the same was inherited by him from his father. The stance of the respondent appearing in his reply would further reflect that he had no relation whatsoever with the petitioner or his cousin Abduz Zaman die alleged vendor of the petitioner.

4.No doubt the S.H.O. Swabi has submitted his report who has also prepared a site plan of the property but the available record of the case never suggests that any unlawful and illegal act of dispossession of the petitioner was committed by the respondent No.1 which is a sine qua non for taking cognizance under section 3 of the Act ibid. The site plan prepared by the S.H.O. concerned would further reveal that the disputed piece of property apparently appears to be the part and parcel of the property owned by the respondent. There is nothing on the record except an unregistered sale-deed to the extent of 1 1/4 Marla which `alone would not be sufficient to reflect the ownership as well as possession of the petitioner over the property. If at all the petitioner feels himself aggrieved, he can well approach the competent civil Court to have a declaration of his title and possession of the property.

5.In absence of any piece of evidence reflecting ownership or possession over the property, one cannot be given a licence on the strength of an unregistered sale-deed to claim ownership as well as possession a few days before and then by simply alleging unlawful and illegal dispossession from the said property without any specific evidence. For making a case under the "Act", one should come forward with a positive evidence of his lawful ownership with possession or a lawful possession in any capacity and then his unlawful and illegal dispossession from the property. If such type of acts are lightly allowed to happen, then tomorrow it will be more easier for person with such type of a document to dislodge a rightful owner in possession in the garb of the Illegal Dispossession Act, 2005. In view of increasing trend of misuse of the provisions of the "Act", the Courts should be more vigilant and conscious of such type of false, vexatious and frivolous claims and shall be dealt with strictly just to discourage unnecessary litigation.

6.So, in this view of the matter, we are not inclined to intervene. Hence, being meritless this writ petition is hereby dismissed in limine.

H.B.T./177/P Petition dismissed.