Order Sheet

JUDGMENT SHEET.

IN THE HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

Criminal Revision Appl. No.S-30 of 2009.

Applicant: Haji Muhammad Usman.

Respondents: Abdul Sattar and others.

Date of hearing: 13.05.2011.

Mr. Bashir Ahmed Mirani, Advocate for the Applicant.

Mr. Aijaz Ali Hakro Advocate for the Respondents No.1 & 2.

Syed Meeral Shah Deputy Prosecutor General for the State

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MUHAMMAD ALI MAZHAR J: This Criminal Revision Application is directed against the order dated 04.02.2009, passed by the learned IVth Additional Sessions Judge, Dadu whereby, the Criminal Complaint No.40/2008 moved by the applicant under Section 3 & 4 of Illegal Dispossession Act, 2005 was dismissed.

2. Succinctly, the facts forming the background of the case are that the applicant had filed a complaint under Section 3 & 4 of Illegal Dispossession Act in which it was alleged that he is lawful owner of Plot No.948/1-A, situated at Deh Siyal, Taluka and District Dadu admeasuring 20 ghunta equivalent to 21780 Sq. Fts. which was purchased by him from Haji Khan Muhammad Shaikh who executed registered conveyance deed on 21.05.1985.

3. It was further averred that the applicant is mostly residing in Saudi Arabia and visiting his native place once or twice in a year as such he had appointed Sewa khan Lund as chowkidar to look after the said property. On 03.04.2008, at about 4.30 a.m., when chowkidar was present at the premises, the Respondent No.1 to 7, entered into the premises and directed the chowkidar to run away else he will face the consequences. According to the applicant, the respondents No.1 to 7, after harassing and threatening his chowkidar, illegally dispossessed him from the lawful property and occupied it illegally and unlawfully and are raising construction on it. The applicant visited the property in question for two times and requested the respondents No.1 to 7 to vacate the same but they threatened him for the dire consequences. The applicant then approached the police for taking legal action against the Respondents No.1 to 7 but no action was taken, therefore, the applicant had filed complaint on 24.09.2008.

4. The respondents No.1 & 2 contested the complaint and filed their objections wherein they took a plea that they have purchased the property in question from the applicant under sale agreement and possession was also handed over to them. They further contended that they had also paid an amount of Rs.500,000/- being part of sale consideration, however, the applicant failed to perform his part of contract, therefore, they filed suit for specific performance before the court of law, hence, the case does not fall within the ambit of Illegal Dispossession Act. After hearing the learned counsel for the parties, the learned trial court dismissed the complaint.

5. Though in paragraph No.5 of the instant revision, the applicant has alleged that the Respondent No.1 to 7 illegally dispossessed the applicant but the applicant himself filed an application MA.NO.351/2010, in which it was stated that the whereabouts of the respondent No.7 is not known, therefore, the applicant does not want to press revision application against him. The order sheet dated 2.3.2010 shows that on the basis of aforesaid application, the learned single judge struck off the name of respondent No.7 from the array of the respondents. The order sheet dated 7.2.2011, further shows that the process server had submitted the report that the respondent No.3 to 6 refused to receive the notice, therefore, the applicant counsel again addressed the court that the applicant does not want to press the revision application against the respondent No.3 to 6 also as according to him, the respondent No.1 and 2 are the main party, therefore, again, the learned single judge passed the order and the names of the respondent No. 3 to 6 were also struck off. Now the revision application is pending only against the respondent No.1 and 2.

6. The learned counsel for the applicant argued that the complainant is the lawful owner of the plot in question and he mostly residing in Saudi Arabia, therefore, in order to protect the property he had appointed chowkidar to look after the plot. On 03.04.2008, the respondents No.1 to 7 illegally took over the possession of the plot in question from the chowkidar. Learned counsel further argued that the complainant/applicant never appointed Muhammad Khan as his agent, therefore, the said Muhammad Khan had no right and authority to sign any agreement on behalf of applicant. He further argued that no sale consideration was ever paid by the respondent No.2 to the complainant and the entire claim is based on forged and fabricated documents. Learned counsel admitted that a suit for specific performance was filed by respondent No.2 against the complainant/applicant and the alleged estate agent Muhammad Khan but the suit was decided in hasty manner and no ample opportunity was given to the complainant to adduce evidence and his side was closed and the suit was decreed against which an appeal is already pending adjudication. Learned counsel further averred that while passing the impugned Judgment, the police report submitted by SHO Dadu on 11.10.2008 and 24.10.2008 were not considered by the trial court in which factum of ownership of complainant was clearly proved. The learned counsel further pointed out page 79, which is a bank deposit slip in the name of applicant Haji Muhammad Usman Shaikh which shows that on 21.11.2007, a sum of Rs.500,000/- was deposited in his account being maintained by him in Muslim Commercial Bank but according to learned counsel no such amount was ever deposited and he pointed out very next page 81, which is a Bank statement issued by Muslim Commercial Bank for the account number of the applicant from 01.11.2007 to 31.12.2007. The Bank Statement shows that during this period, no transaction was made in this Bank account, therefore, the learned counsel is of the view that the receipt produced by the respondent No.1 & 2 is forged and manipulated receipt and no amount was ever paid or deposited in the Bank account of the applicant/complainant. Learned counsel further averred that the complaint under Section 3 and 4 of the Illegal Dispossession Act was filed in the trial court on 24.09.2008, while the alleged suit for specific performance was filed by the respondent No.2 in the month of October, 2008 to cover up the illegalities and to show that he did not commit any offence under the Illegal Dispossession Act but he is claiming the possession under the agreement to sell. Learned counsel reiterated that Muhammad Khan was never appointed an agent of the applicant for managing or looking after the properties of the complainant/applicant, therefore, on this ground alone the suit was not maintainable but this important aspect has been overlooked by the civil court and the complaint under Section 3 & 4 of the Illegal Dispossession Act was also dismissed by the trial court on the mere assumption that the matter pertains to a civil dispute. In support of his arguments, the learned counsel relied upon following case laws:-

i. PLD 2009 Lahore 220, (Rao Khalid Javed Vs. Faiz Ahmed and 6 others). In this case, the learned single Judge of the Lahore High court has held that the lawful basis of filing complaint is illegal dispossession as laid down in a number of cases by the superior Courts of this Country. For example, the hon’ble supreme court has held that the Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of the owner and lawful occupant of the property as against the unauthorized and illegal occupant PLD 2007 SC 423. The impugned order and the report of the S.H.O. clearly mention that petitioner was a rightful owner and lawful occupant of his property before he was illegally dispossessed. The same judgment further lays down that careful examination of the relevant provision of the Act would reveal that all cases of illegal occupants without any discrimination would be covered by the Act, except the cases which were already pending before any other forum. As noted above, the learned A.S.J himself did not find any defect with lawful ownership of the petitioner. The same also reflects from the report of the S.H.O, which was also not disputed by the respondent before the learned A.S.J or any other forum. In the above circumstances, filing of civil suit on 5.12.2005 after illegally dispossessing the petitioner from his property does not affect the maintainability of the complaint which vide impugned order was dismissed by the learned A.S.J, Pakpattan Sharif. The precedent cited by the learned counsel for respondent PLD 2008 Lahore 392 is not applicable in the facts and circumstances of the instant case. I have already pointed out above that it seems that civil suit was filed on 5.12.2005 after illegally dispossessing the petitioner and to cover the same, with malafide intention.

ii. 2009 P Cr. L J 578, ( Sardar Shah Nawaz Khan Vs. Malki Aman and others). In this case, it has been held that complainant is lawful owner of the disputed house. Respondent No.1 is an illegal occupant of the house as he is not possessed with any document of title. He attempted to justify his illegal possession on the basis of an agreement of sale executed by one Muhammad Iqbal, who is admittedly neither owner of the house nor lawful appointed attorney of the owner. Purpose of the Special Law is to protect rights of possession of lawful owner. The learned Additional Sessions judge dismissed the complaint by the lawful owner against unauthorized occupant of the house summarily, arbitrarily and without application of judicial and legal mind. In this view of the matter the impugned order being illegal and offensive to the case law laid down by the apex Court cannot be allowed to hold the field.

iii. P L D 2007 Supreme Court 423, ( Rahim Tahir Vs. Ahmed Jan and 2 others). In this case, the honorable supreme court held that the mere filing of the suit subsequent to the filing of complaint on the basis of a document which has no legal foundation, would be of no significance to protect the illegal and unauthorized possession. The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises. In the light of foregoing reasons, we convert this petition into an appeal, set aside the judgment of the High Court and remand the case to the learned Sessions judge, Karachi, West, for decision of the complaint on merits in accordance with law.

7. Conversely, the learned counsel for respondents No.1 & 2 argued that the Estate Agent Muhammad Khan is the recognized agent of the applicant, who executed formal agreement on behalf of the applicant/complainant with the respondent No.2. He further argued that it was orally settled between the applicant and respondent No.2 that a sum of Rs.500,000/- will be paid to the applicant/complainant through a cross cheque in his name and it was also agreed that remaining amount of Rs.38,58,000/- will be paid by respondent No.2 at the time of execution of conveyance Deed. It is further averred by the learned counsel that the complainant himself called the respondent No.2 at the plot for the purpose of measurement and when respondent No.2 visited the site, applicant was present along with agent and was busy in making measurement and after proper measurement the applicant handed over the possession of the property in question to the respondent No.2. Learned counsel further argued that this is a civil dispute between the parties and the learned trial court has rightly dismissed the complaint filed under Section 3 and 4 of Illegal Dispossession Act. The suit for specific performance was filed by respondent No.2 which has been decreed and an appeal has been filed by the applicant which is pending adjudication, therefore, the learned counsel is of the view that there is no case made out for the interference of this court. In support of his arguments, learned counsel has relied upon the following case law:

i. 2008 M L D 1702 Karachi, (Mumtaz Hussain Vs. Dr. Nasir Karim and 2 others). In this case, it has been held that suit filed by the applicant against respondents for injunction was pending adjudication before the civil court, wherein the applicant had prayed for perpetual injunction against their dispossession from the property in dispute. Unless title of the parties is cleared by the civil court, the criminal proceedings under Illegal Dispossession Act, 2005 could not be initiated. Lower court had rightly passed the order by holding that the matter being sub judice before the civil court, proceeding under Illegal Dispossession Act, 2005 could not be taken.

ii. 2008 Y L R 462, (Fazal Karim Vs. The State and 10 others). In this case, it has been held that civil court had already seized of the dispute between the parties regarding property in issue and the matter of possession of the relevant property was being regulated by the civil court through a stay order. Complaint filed by the respondent under S.3 of Illegal Dispossession Act, 2005, was not maintainable and proceedings undertaken by the trial court in that regard were without lawful authority.

iii. PLD 2007 Lahore 231, (Zahoor Ahmad and 5 others Vs. The State and 3 others). In this case, it has been held that the Illegal Dispossession Act 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/ Qabza Groups/land mafia, i.e cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on going private dispute over the relevant property. A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue court.

iv. 2010 SCMR 1254, (Mumtaz Hussain Vs. Dr. Nasir Khan and others). In this case, the honorable supreme court has held that it is important to note that the act of entering into or upon the property for dispossessing another person with intent to commit an offence or to intimidate or insult or annoy any person possessed of such property or having lawfully entered into or upon such property, unlawfully remains there with the above intention then such act is coming within the definition of criminal trespass as defined in section 441 of Pakistan Penal Code and punishable under section 447 of the said Act. Thus the act of dispossession as provided under section 441, P.P.C. is already an offence. However, the offence as provided under section 3 of the Act appears to be an aggravated form of the offence under section 441, P.P.C, therefore, it cannot be said that the Act of dispossession is a new offence under the Act. As the question of title of the property is already pending before the competent court of civil jurisdiction before filing of the complaint, therefore, in view of the rule laid down by this court in the case of Rahim Tahir and Muhammad Akram (supra), the present appeal is dismissed. However, after the decision of such suit in favour of the complainant/appellant, he can approach the Court under section 4 of the Act, if so advised.

8. The pros and cons lead me to a conclusion that without adverting to the to the bone of contention, the learned trial court dismissed the complaint on the ground that civil suit between the parties is pending and by virtue of an application moved u/s 151 CPC, parties were directed to maintain status quo. The bare bones whether the applicant was dispossessed or not, this crucial facet remained untouched by the trial court which had a paramount significance for just and proper decision of the complaint moved under section 3 & 4 of the Illegal Dispossession Act, 2005. The applicant claims that neither Muhammad Khan was ever appointed his duly authorized agent to negotiate and sign any deal with respondent No.2 nor he was given any such authority nor the possession of the property in question was handed over by the applicant by virtue of agreement to sell or its part performance nor any sale consideration was ever agreed or paid by the respondent No.2. On the contrary, the respondent No.2 claims that he purchased the property through duly recognized agent and possession of the property in question was handed over by the applicant to the respondent No.2.

9. I have pored over the documents placed on the record and of the firm view that no document has been placed by the respondent No.2 to show that Muhammad Khan was a duly authorized or duly recognized agent or attorney of the applicant. The respondent No.2 has also not claimed that possession was handed over to him in the part performance of the contract or the delivery of the possession was agreed in the agreement itself. The translated copy of the agreement is available on the record, which only shows that Muhammad Khan has simply signed the agreement. In the same agreement Muhammad Khan submits that he will arrange power of attorney and execute the registry in favour of vendee (respondent No.2). It is further mentioned that the possession shall be handed over to the vendee after full payment. It is clear beyond any shadow of doubt that the agreement does not specify whether any power of attorney was executed by the applicant in favour of Muhammad Khan prior executing the alleged agreement to sale. Though at page 79, a Bank slip dated 21.11.2007 is available which was filed by the respondent No.2 in the trial court along with his objections. This receipt shows that a sum of Rs.500,000/- was deposited in the account of Haji Muhammad Usman but on the very next page 81, a Bank statement of account of number of Haji Usman is available for the period commencing from 1.11.2007 to 31.12.2007 in which no such amount was credited in the account of Muhammad Usman, however, certificate dated 30.01.2009 available at page 83 further shows that a sum of Rs.500,000/- was credited in the account of applicant on 31.01.2008. The respondent No.2 has also failed to place anything on record to demonstrate that the possession was handed over to him under the signature of the applicant or under the terms and conditions of sale agreement. Two police reports dated 11.10.2008 and 24.10.2008 are also available on record but while passing the impugned order, the learned trial court has ignored both the reports. It is also a matter of record that the complaint under Section 3 & 4 of the Illegal Dispossession Act was filed on 29.09.2008, while the suit for specific performance was filed on 29.10.2008 against the applicant and Muhammad Khan, the alleged recognized agent.

10. The Doctrine of equity of part performance is enunciated by section 53-A of the Transfer of Property Act 1882, as such the same should be inured from the legality and enforceable contract between the transferor and the transferee. Where the possession of transferee is not under proper, legal and enforceable contract the protection of 53-A Transfer of Property Act is not available to him and transferee cannot use the same as weapon. Doctrine of part performance as developed by equity Courts in England, having been given statutory recognition by “means of enacting S. 53-A. Principle of part performance being based upon golden rules of fairness, justness and righteous dealing between the parties. In order to avail plea of part performance embodied in S. 53-A one had to show that contract was in writing signed by transferor in respect of an immoveable property; transfer could be ascertained with reasonable certainty from such writing and in part performance of contract, transferee had taken possession of property or any part thereof or if he was in possession, he continued to be in possession in part performance of contract and had done some act in furtherance of contract and transferee had performed or was willing to perform his part of contract.

11. The case law referred to by the learned counsel for the applicant are quite applicable in which it was held that mere filing of a civil suit subsequent to the filing of the complaint on the basis of a document having no legal foundation was of no consequences and significance to protect illegal and unauthorized possession. Purpose of illegal Dispossession Act is to protect the right of possession of the lawful owner or occupier and not to perpetuate the possession of illegal occupants. It was further held that the respondent admittedly was inducted into the premises by a person, who was neither owner nor lawfully constituted attorney of the owner to have an authority to enter into an agreement of sale on behalf of the owner.

12. The case law referred to by the learned counsel for the respondents No.1 & 2, are distinguishable and not relevant to the facts and circumstances of the present case. In the first Judgment reported in 2008 MLD 1702, both the parties were disputing the title of the property and filed the cases for declaration, injunction, cancellation and perpetual injunction against each other. The next case reported in 2008 YLR 462 is also distinguishable because in this case, the dispute was between the co-sharers of the property in question and no such issue was involved whether the person entered into alleged agreement to sell was duly recognized or authorized agent. In the third case reported in PLD 2007 Lahore 231, the learned full bench of Lahore High Court held that the Illegal Dispossession Act 2005 will not apply to the cases of disputes over possession of immovable properties between co-owners and co-sharers, between landlord and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreement or revenue record or cases with the background of and on going private dispute over the relevant property. This case is also distinguishable to the facts and circumstances of the case in hand. It is an admitted position that no power of attorney was executed by the applicant in favour of respondent No.2 for selling his property, therefore, this case has no germane. The next case relied upon by the learned counsel for respondent No.1 & 2 is 2008 SCMR 1254 in this case also the civil litigation was already pending relating to the title of the property and the status quo order was passed by the court but during the pendency of civil litigation complaint under Section 3 & 4 of Illegal Dispossession Act was filed, therefore, the honorable supreme court held that as a question of title of property was already pending before the Civil court of competent jurisdiction before filing of the complaint, therefore, in view of the rule laid down in the case of Rahim Tahir and Muhammad Akram, the appeal was dismissed with further observation that after the decision of the suit in favour of the complainant/appellant, he can approach under Section 4 of the Act if so advised. The case of Rahim Tahir is the same case on which, the applicant has also relied upon. In this case, the honorable supreme court held that mere filing of the suit subsequent to the filing of the complaint on the basis of document having no legal foundation, was of no consequences and significance to protect the illegal and unauthorized possession. Since in the Rahim Tahir case, the honorable bench of supreme court also held that the Illegal Dispossession Act 2005 has retrospective effect, therefore, this aspect was considered by the honorable supreme court in its subsequent Judgment reported in PLD 2009 SC 404 in which it was held that making a law providing for retrospective punishment of a person was specifically prohibited by Article 12 of the Constitution. Finally it was held that Rahim Tahir Vs. Ahmad Jan and 2 others, reported in PLD 2007 SC 423 not correct law to the extent of retrospective operation of the Illegal Dispossession Act, 2005. This Judgment makes it abundantly clear that the Rahim Tahir case (supra) was considered not to be a correct law only to the extent of declaring the operation of the Illegal Dispossession Act 2005 retrospectively, but the basic principle laid down in the Judgment in relation to the filing of civil suit after filing complaint under Illegal Dispossession Act and its effect was affirmed and also relied in the judgment reported in 2008 SCMR 1254. In the last case reported in 2010 YLR 2864, the learned single Judge of this court considered the pendency of civil suit. The facts of this case are also distinguishable as the possession was claimed to be handed over consequent to sale agreement and possession letter but again, in the case in hand, neither the alleged agreement speaks about any delivery of possession nor any receipt is attached which may show that the possession was handed over to the respondent No.2 consequent upon the agreement to sell.

13. The whys and whereforces lead me to an irresistible conclusion that the bone of contention between the parties whether case of illegal dispossession was made out or not was overlooked and ignored by the trial court and an incomprehensible and patently improbable order was passed without adverting to an imperative contemplation that mere filing of a suit subsequent to the filing of complaint on the basis of a document which has no legal foundation, would be of no significance to protect the illegal and unauthorized possession.

14. The upshot of this discussion is that the impugned order dated 04.02.2009, passed by IVth Additional Sessions Judge, Dadu in Criminal Complaint No.40/2008 is set aside and matter is remanded to the trial court for the decision of complaint on merits in accordance with law.

Hyderabad

Dated. 3.6.2011 Judge