Sattan Kumar (Applicant) VS Muhammad Yousif (Respondent)

Cr

Cr.Revision No.48 of

Sattan Kumar v/s Muhd Yosif.

1.For orders on MA 1719/08.

2.For Katcha peshi.

14.04.2009. Mr.Pritamdas Marwari, advocate for applicant.

Mr.Ali Haider Dareshani, State counsel.

ARSHAD

NOOR KHAN,J- This revision application has been filed by the applicant against the order dated 30.05.2008 passed by the learned IIIrd Additional Sessions Judge, Mirpur Mathelo in a Direct Complaint No.05/2008 whereby the direct complaint filed by the applicant under Section 3 of the Illegal Dispossession act, 2005, has been dismissed summarily.

The facts leading to the present revision application in brief are that the applicant purchased a portion of Survey Number 58/2-05 acres situated in Deh Gorchelo, Taluka Daharki in the year 1979 and by purchase of said property, the applicant and his brothers became the owner of the 47 paisa share in the property in dispute. It is also mentioned in the direct complaint that the applicant appointed the respondent as hari in the year 1979 and handed over the possession to him for cultivation and the respondent continued to pay the share in the crops till 2005-06 and thereafter he stopped the payment of the share of the applicant and in this way, the respondent illegally and un-authorizedly dispossessed the applicant from the property in question, therefore, the applicant filed a direct complaint before the learned lower Court for possession of the property in question. The learned lower Court dismissed the direct complaint mainly on the ground that the Illegal Dispossession Act, 2005, has been promulgated to save the possession of lawful owners against the highhandedness of Qabza group and land mafiya and in the present case the interference of Qabza group and land mafia is not involved, therefore, the provisions of Illegal Dispossession Act, 2005 are inapplicable. Being aggrieved against the dismissal of the direct complaint, the applicant has preferred the present revision application.

I

have heard Mr.Pritamdass Marwari, learned counsel for the applicant and Mr.Ali Haider Dareshani, learned State counsel.

The learned counsel for the applicant vehemently contended that after purchase of the property in the year 1979, the respondent was inducted in the property being tenant and he was paying the share of the Batai/crops legally till the year 2005-06 when he stopped the payment to the applicant, therefore, he has illegally dispossessed the applicant from the property in question and Section 3 of Illegal Dispossession Act, fully apply under the peculiar circumstances of the present case. In support of his contention, he has relied upon the case of Rahim Tahir v Ahmed Jan and 2 others reported in PLD 2007 SC 423 and the case of Nazir Ahmed v Asif and 4 others reported in PLD 2008 Karachi 94.

The learned State counsel vehemently refuted the arguments advanced on behalf of the applicant and has contended that from the facts and circumstances of the case it transpires that it is a dispute between landlord and tenant, for which, appropriate forum is available to the applicant to get his grievance redressed and that there is no involvement of Qabza group or land mafia as has been thoroughly discussed in the case of Zahoor Ahmed and 5 others v The State and 3 others, reported in PLD 2007 Lahore 231, as such the act of the respondent, if any, is not covered within the definition of Qabza group an land mafia and learned lower Court rightly dismissed the direct complaint filed by the applicant.

I

have considered the arguments advanced on behalf of the parties and have gone through the material available before me as well as the case law.

The Illegal Dispossession Act, 2005-06 has been promulgated by the government to save the lawful possession of the owner over the property against unlawful dispossession at the hands of Qabza group or land mafia. The preamble of the Illegal Dispossession Act, therefore, shows that the lawful possession of a person has been protracted though the possession of the occupier may not be in the capacity of owner but the conditions precedent for the said purpose is that the possession of person over the property in question must be lawful meaning thereby the said possession is recognizable under the law. In the present case the applicant in direct complaint itself has well worded that after purchase of the portion of the agricultural land, he inducted the respondent as tenant over the property in question, who was paying share and Batai/crops but he illegally stopped the payment of the same since 2005-06. The said admission of the applicant itself shows that the respondent has not dispossessed the applicant from his possession over the property in question illegally un-authorisedly or forcibly. On the contrary the applicant himself inducted him in the possession of the said agricultural land, as such the provisions of Section 3 of Illegal Dispossession Act, 2005 are not applicable.

The applicant no where in his complaint has alleged that the respondent belongs from Qabza group or is well known as member of land mafia to grab or un-authorisedly occupied the land of the lawful owner, as such the observation made by the full bench of the Lahore High Court in the case of Zahoor Ahmed, supra, are fully applicable, which says that Qabza group and land mafia and for individual who, without any lawful or justifiable claim to an immovable property, grab the same by force or deceitful means through an organized and calculated methodology or stratagem and also that the provisions of the Illegal Dispossession Act, 2005 do not apply to run of the mill and common place dispossession from immovable properties by ordinary persons having no such credentials or antecedents or employing no such organised and calculated strategy or using no force or deceit.

The observations made by the Lahore High Court in the aforesaid case are also fully applicable in the circumstances of the present case as the land in dispute is a common place wherein the applicant possess only 47 paisa share.

After adjudging the case from every angle, I am of the opinion that the provisions of Illegal Dispossession Act, 2005 are inapplicable. However, the remedy available to the applicant is to apply to the DDO (Revenue) or DO (Revenue) under the Tenancy Act for the redress of his grievance if any. The case law relied upon by the learned counsel for the applicant in my opinion are distinguishable from the circumstances of the present case and are inapplicable.

For all the aforesaid reasons and circumstances, I am of the view that this criminal revision application is not maintainable and is hereby dismissed summarily.

JUDGE

Akber.

Approved for reporting.