FAZAL-E-MIRAN CHAUHAN, J. - By filing the instant writ petition, the petitioner has called in question order dated 06.05.2006, passed by the learned Additional Sessions Judge, Sialkot (respondent No. 1), dismissing the complaint of the petitioner under Illegal Dispossession Act, 2005.
2. Briefly, the facts of the case giving rise to the instant writ petition are that; the petitioner filed a complaint under Section 3 of-the Illegal Dispossession Act, 2005 that respondents Nos. 2 and 3 illegally occupied a part of Chappar Deh measuring 10/11 marlas and thoroughfare before the learned Sessions Judge, Sialkot on 8.4.2006, which was entrusted to the learned Additional Sessions Judge, Sialkot (respondent No. 1), who instead of examining the complaint and requiring him to produce evidence, directed the S.H.O, concerned to make preliminary investigation and S.D.P.O., Sialkot was also directed to verify the report of the S.H.O. The report was submitted on the basis of which the learned Additional Sessions Judge dismissed the complaint of the petitioner, being not maintainable. Being' aggrieved, the petitioner has filed this writ petition.
3. It is contended by learned counsel for the petitioner that; in accordance with provisions of Section 4 of the Act, the learned Additional Sessions Judge was to take cognizance of the complaint and it was triable by him as a complaint. Neither the learned Additional Sessions Judge examined the complainant/petitioner nor given time to produce his evidence to substantiate the allegations made in the complaint. The material collected by the S.H.O./S.D.P.O, clearly proves that discrepant and contradictory evidence has been collected, which necessary required the learned Trial Court to resolve the factual controversy between the parties. Further contends that the learned Trial Court has not afforded any opportunity of cross-examining the inquiry Officer nor any witnesses, who made statements in favour of the respondents.
4. I have heard learned counsel for the parties and perused the record. On 08.04.2006, a complaint was filed by the petitioner alleging therein that respondents Nos. 2 and 3 had illegally encroached upon the Kacha path, which leads to a Chah ( ____ __ ), being used by him since 1947. The learned Additional Sessions Judge, respondent No. 1, taking cognizance of the complaint, directed the S.H.O, to investigate the matter and submit a report, who submitted his report on 15.04.2006; both the parties claimed their right upon the land. Respondent No. 1/Additional Sessions Judge by disagreeing with the report of A.S.I., directed to S.H.O.. To re-investigate the matter and submit his report. A.S.I., after recording statements of the resident of the Abadi Deh and from the statements of inhabitants, it reveals that the land, being used as Kacha passage by the petitioner with a Shamlat Deh. Presently, it was converted into a Chappar (------- )
5. -In this view of the matter, it is to be seen whether any complaint under Illegal Dispossession Act, 2005 is maintainable. This Act was enacted to curb the act of the property grabbers and to protect the lawful owner and occupiers of immovable properties from the illegal or forcible dispossession.
6. "Owner" as per sub-section (d) of Section 2 of the Act means "the person actually owns the property at the time of dispossession, otherwise than through a process of law". "Occupier" means the person, who is in lawful possession of a property.
7. The owner, as defined in Clause (d) of Section 2 of this Act, means a person actually owning the property at the time of dispossession. From the report of A.S.I., Naib Tehsildar and the statements of the residents of the village, it appears that the petitioner was not in occupation of the land/path, as its owner. At one time, it was used as a path by the petitioner to reach his Chah; presently, it was converted into a Chappar. In the revenue record, it is recorded as Shamlat Deh and was in possession of any body. There is no evidence on record showing that the petitioner is in lawful possession of the land/path and was dispossessed. There are contradictory statements about the time, since it was used as path and when it was occupied or encroached upon by respondents Nos. 2 and 3.
8. This fact can only be determined by a court of competent jurisdiction and not in the summary proceedings of Illegal Dispossession Act, 2005. The property, as defined in Clause (d) .-of Section 2 of the Act means, immovable property. Whether the right of way over land is immovable property, as defined in the. Act. Right of way is not "immovable property". Reliance is' placed on Mangaldas Shankarlal v. Jewaruram Mayashanakar and others (1899 Bombay Law Reporters 167) wherein it has been held that:- "A right which cannot be transferred apart from the dominant heritage does not appear to come within the term "property" as used in section 9 of the Specific Relief Act. Right of way isn an interest in land, but it is an interest entirely dependant on the possession of the property to which it appertains, and cannot be possessed apart from it. It is a right appurtenant to property but taken by itself does not ,come within the term property which, under the section, must be property capable of separate enjoyment as an independent rights.
9. It seems to me that when a person is obstructed in his right of access to his property or in the enjoyment of light and air or of other amenity connected with that property, it would be an abuse of language, to say that he was dispossessed of immovable property.
10. The petitioner is claiming a right of way on Shamlat Deh. The petitioner was not owner of the land (property), in question, nor in occupation of the same at the time, when it was Occupied by respondents Nos. 2 and 3.
11. In this view of the matter, no case under Illegal Dispossession Act is made but, calling for interference by this Court in writ jurisdiction; this writ petition is dismissed in " limine.