Abdul Bari (Applicant) VS The State(Respondent No 1), Karim Bux Brohi(Respondent No 2), Nawab Alias Chiragh(Respondent No 3), Ramzan(Respondent No 4), Aslam(Respondent No 5), Shahdo(Respondent No 6), Roshan(Respondent no 7), Shaffan(Respondent No 8), Wahid palari(Respondent No 9), Jawaid(Respondent No 10), Pero(Respondent No 11). (Respondent)

ORDER

SHEET

HIGH COURT OF SINDH CIRCUIT

COURT HYDERABAD.

CR. REV. A. No.S-26 OF 2008.

Date Order with Signature of Judge

FOR HEARING OF MA NO.738 OF 2008.

Mr. Muhammad Azeem Panhwar, Advocate for the applicant.

Mr. Anwar H.

Ansari, Advocate for the State.

Mr. Muharram G.

Baloch, Advocate filed his power for respondents No.2 to 5, along with objections, which are taken on record.

MUNIB AHMED KHAN,J.-Learned Counsel for the applicant submits that his complaint under Section 3 of the Illegal Dispossession Act 2005 has not properly been disposed of, as the same was entertained by the learned trial Court after initial inquiry, wherein the report of the Mukhtiarkar was also examined. He has pointed out following para from the order of the trial Court:

"After receiving the complaint, a report under Section 5 of the Act, was called from the SIO of Police Station Nooriabad. A report was submitted in which, the SIO reported that property in question belongs to one Shafat Ahmed Shaikh and that all the concerned persons viz. Mukhtiarkar, Tapedars and other persons reported and confirmed that the said property belongs to Shafat Ahmed Shaikh. It is further reported that the accused persons except accused Malik Qamaruddin, Badal Palari and SHO Police Station, Nooriabad were found in illegal possession of the land in question”.

2.Learned Counsel for the applicant submits that after the above order the learned trial Court would have examined and determined the question in respect of ownership and illegal possession, but that has not been done and proceedings distracted only for the reason that the respondent forwarded his claim in respect of Khet No.209, which according to the concerned Mukhtiarkar, is in his name. Learned Counsel further submits that he has no concern with Khet No.209, but in respect to other survey numbers and it would have been seen by the trial Court after proper demarcation as to whether the land in question has been occupied illegally and if so, the matter would have been properly dealt with.

3.Learned Counsel for the respondents submit that the order passed by trial Court is proper, as there was dispute in between the parties in respect of the land in question, therefore, the learned trial Court has rightly dismissed the complaint while observing that it is a matter of civil nature.

4.After hearing the learned counsel and perusing the order I am of the view that there are certain survey/Khet numbers, for which the application under Illegal Dispossession Act has been filed and the ownership of the complainant/applicant has been supported by the concerned Mukhtiarkar, which has also been taken into consideration by the learned trial Court. The respondents are claiming that Khet No.209, which is not being claimed by the applicant, is in their possession. In such situation there is no conflict in respect of claim and title documents. The learned trial Court could proceed with the matter by ascertaining the factual position in respect of demarcation and entitlement of the parties instead of terming the case of civil nature. The Illegal Dispossession Act 2005 has been promulgated to safeguard the interests of the owners and to stop the land grabbers from occupying the lands illegally. Therefore, there is no justification if the case is simply termed as a dispute in civil nature without bringing relevant matter on record.

5.In such situation, the Cr. Rev. Application is allowed and the order dated 18.12.2007, is set aside with the direction to the learned trial Court to call proper report from Mukhtiarkar in respect to title and demarcation in respect of land of the applicant and of respondents as well and proceed further under the Illegal Dispossession Act 2005.

J U D G E