The petitioners moved an application under the Illegal Dispossession Act 2005 in the Court of Learned Addl. District Judge-VIII Peshawar for restoration of possession of land measuring 10 Kanals 16 Marlas bearing Khata No 74/275 Khasra No 1421 situated at Mauza Regi Aftizai, Tehsil and District Peshawar. The respondents resisted the said -application and ultimately it was dismissed vide order dated 19.9.2006. Feeling aggrieved with the said order the petitioners have filed the Criminal revision petition in hand.
2. Mr.Shahbaz Khan, Advocate the learned counsel for the petitioner argued that the learned trial Court did not appreciate the material placed on record, hence its order needs reversal.
3. It was also argued that the learned trial Court did not record evidence in the case and straightaway dismissed the application/complaint of the petitioners.
4. It was also argued that the learned trial Court did not exercise its discretion vested in it properly.
5. I have heard the learned counsel for the petitioners and perused the available record.
6. The complaint filed by the petitioners shows that the applicants alongwith one Amanullah Khalil, who is now-a-days abroad are owners of the disputed land. The suit land was previously being cultivated through Respondent No. 4 and then by Respondent No. 5 as tenant for the last 20 years.
The petitioners were receiving the produce of the suit land and it was on 25.4.2006 that Respondents No. 1 and 3 illegally dispossessed Respondent No. 5, the tenant of the complainant and they also cut and removed the crop of the petitioners.
7. On receipt of the said complaint the Court below as per requirement of Section 5 of the Illegal Dispossession Act 2005, hereinafter called as the "Act', sent for the report of the SHO. The enquiry was marked to the SHO of P.S. Nasir Bagh, who recorded statements of Respondents Nos. 4 and 5, the tenants of the complainant Patwari Halqa's statement could not be recorded as he was not available in those days.
7A. The perusal of the statements of Amir Muhammad Respondent No. 5 (tenant) of the petitioners from whom the possession was allegedly taken shows that he would cultivate the land in dispute and used to pay Ijara/produce to Haji Noor Akbar, who would in turn pay the same to the attorney of the owners. The dispossession, as per his statement, took place 1 year back. His statement was recorded by the SHO on 22.6.2006. Haji Noor Akbar when examined on the same date stated that the dispossession took place 1-1/2 year ago. If the statements of the tenants are taken into consideration, then dispossession took place 1-1/2 year before filing of the complaint. The Illegal Dispossession Act, 2005 (Act XI) of 2005 was promulgated from 7th July 2005, i.e. the alleged dispossession took place much before the promulgation of the Act. Since the provisions of the Act cannot be applied retrospectively, therefore, the act of Respondents Nos. 1 to 3 does not fall within the ambit of the Act.
8. If for the sake of arguments this Court believe the statements of the two tenants of the petitioners as correct even then this Court as, per Para 3 of the revision petition in hand, it was on 25.4.2006 that Respondents Nos. 1 to 3 illegally entered on the suit property, but the complaint in hand was filed on 23.5.2006 i.e. about one month after the occurrence. When the learned counsel for the petitioners was asked to explain the said delay, his simple reply was that the petitioners wanted to obtain the copy of Khasra Girdawari, but due to absence of the Patwari Halqa they could not get the same. If this was the case, then it is not understandable as to why the complaint was filed without attaching .Khasra Girdawari with it. The perusal of the revision petition in hand also shows that the Khasra Girdawari has not been attached with this revision petition too, therefore, the explanation given by the learned counsel for the petitioners is not proper and convincing. It is worth mentioning here that the petitioners did not even bother to lodge report in the Police Station with regard to the occurrence. The complaint was filed as after thought, with abnormal delay and with due deliberations and consultations.
9. If the petitioners have been aggrieved by any act of Respondents Nos. 1 to 3, they can safely approach the Civil Court of competent jurisdiction for redressal of their grievance.
10. The Court below has rightly dismissed the complaint and I have not been able to find out any illegality or any justification to interfere with the findings recorded by the Court of competent jurisdiction. Resultantly the revision petition in hand is dismissed in limine.