1. ' SYED ZAWWAR HUSSAIN JAFFERI, J.- Learned counsel for respondent No,3 has filed Vakalatnama on behalf of the respondents Nos.1 and 2, the same is taken on record. By consent this revision application is disposed of finally at Katcha Peshi stage. The applicant being dissatisfied with the impugned order, dated 6-11-2006 passed by the learned Sessions Judge, Shikarpur in Complaint No,36 of 2006 re: Muhammad Ramzan Aarain v. Muhammad Aslam and others has preferred this revision application that the impugned order may be set aside. Hence this revision application.
2. ' It is contended by the learned counsel for the applicant that applicant is lawful owner of the property/land S.No,64 of Deh Mirzan Wah, Taluka Khanpur District, Shikarpur. The respondents had forcibly and illegally trespassed the land owned by the applicant with a common intention to grab the property. The applicant being dissatisfied with the acts of the respondents filed civil suit before the learned Senior Civil Judge, Shikarpur for seeking restoration of possession along with an application for obtaining status quo. Learned Senior Civil Judge after filing of the said suit issued the notice to the respondents and maintained the status quo against Muhammad. Idrees and Muhammad Aslam. The said suit is being defended by the parties. In the meanwhile the applicant filed Criminal Miscellaneous Application No,36 of 2006 in the Court of learned Sessions Judge, Shikarpur under section 4 of Illegal Dispossession Act, 2005 in offence under sections 3 and 7 of Illegal Dispossession Act, 2005. No notice of this application was issued by the learned Session Judge to the relevant parties but notice was sent to the learned District Attorney who appeared and opposed the complaint and stated that the applicant has already filed suit before Civil Court for seeking declaration regarding his title over disputed property. It is stated in the application that during the pendency of the suit learned Senior Civil Judge, Shikarpur while passing the order for conducting the enquiry regarding possession of the land and its measurement in respect of the S.No,64 of Deh Mirzan Wah through Mukhtiarkar Khanpur who was appointed as Commissioner who enquired into the matter and verified that an area of 0-24 Ghuntas is occupied by the owner of S.No,63 of Deh Mirzan Wah namely (Asghar Ali Arain) respondent No,2 and others in the eastern side. The measurement was not disputed by both the parties. For the sake of convenience the Commissioner's report filed in Suit No,2 of 2006 regarding Muhammad Ramzan v. Muhammad Idrees is reproduced hereinbelow:-- "It is submitted before Honourable Court on 21-9-2006, the undersigned along with Tapedar Ali Murad Kalhoro in presence of both the parties, (sic) the measurement of S.No,61 of Deh Mirzan Wah Taluka Khanpur. In result of measurement it is cleared that the area of 0-24 Ghunta of S.No,64 is occupied by the owner of S.No,63 of Deh Mirza Wah (viz. Asghar Ali Arain) in the eastern side.
3. ' The Mashirnama is prepared on the site in presence of Mashirs, both the parties have accepted the measurement.
4. ' Original Mashirnama and Dasti Soorathal are enclosed for kind perusal.
5. (Sd.) 23-9-2006 Mukhtiarkar Khanpur."
6. ' Mr. Sarfraz Alam Meerani learned counsel further submits that there is no bar existing to initiate both the proceedings i.e. Civil and criminal simultaneously. In support of his arguments he has relied upon the case of Rafique Bibi v. Muhammad Sharif and others 2006 SCM R 512. Mr. Noor Muhammad Soomro, Advocate has conceded that respondents Nos.1 to 3 are not owners of S.No,64 but their land is also situated near the land of the applicant in S.No,63. The applicant instituted the civil suit for seeking declaration and possession of the suit-land before the competent Court of law and while pendency of the said suit. The applicant has preferred a complaint before the learned Sessions Judge under section 4 of Illegal Dispossession Act, 2005 and applicant has to show that the respondent has encroached a portion of area of S.No,64. He has vehemently opposed this application and submits that the applicant should wait and let the evidence in the suit may come.
7. ' Mr. Muhammad Bachal Tonyo learned Additional' Advocate-General submits that under Illegal Dispossession Act no bar exists to initiate both the proceedings i.e. Civil and criminal simultaneously. Learned Additional Advocate-General submits that in the suit learned trial Court appointed Mukhtiarkar as a Commissioner to inspect the site and submits the report regarding illegal encroachments. In result of measurement it was pointed out that an area of 0-24 Ghunta of S.No,64 is occupied by the owner of S.No,63 of Deh Mirzan Wah (viz. Asghar Ali Arain) in the eastern side. At the time of preparation of Mashirnama at site the presence of Mashir and parties, is accepted, .The measurement therefore, illegal possession was made by the respondent Asghar and others.
8. I have heard learned counsel for the respective parties, perused the material with the assistance of the learned Advocates for the relevant parties. There is no bar that any party may choose to file civil suit or criminal proceedings but as per law both the remedies can be availed of by the applicant. The superior Courts have always emphasized for the protection of the rights of the person and property. Admittedly, the respondents have encroached upon the land of the applicant with ulterior motives in order to usurp the land of the applicant. Learned Sessions Judge, Shikarpur while interpreting regarding the simultaneous remedies has not taken into comideration hat there is no bar to initiate both the proceedings. The Court has to see the ground realities regarding the hardship of the parties. The respondents are not owner of the S.No,64 situated in Deh Mirzan Wah but they are having S.No,63 nearby the land of the applicant and with this view they have grabbed a portion of land bearing 0-24 Ghuntas. The applicant has rightly filed the application for seeking eviction of the respondents from the land involved in the application therefore, the impugned order, dated 6-11-2006 is set aside. The respondents are directed to hand over the area of 0-24 Ghuntas to the applicant in a peaceful manner within twenty days time as agreed by Mr. Noor Muhammad Soomro, Advocate for respondents Nos.1 and 3 as the suit-land is not under cultivation as admitted by the learned counsel for the respective parties. Mere pendency of the civil suit regarding declaration does not mean that the applicant cannot avail other efficacious remedy by approaching the Court having jurisdiction. The application was maintainable before the Court of learned Sessions judge, Shikarpur but it was observed that the civil suit is pending. In case the possession is not peacefully handed over to the applicant by the respondents within stipulated period then the applicant can file an application for initiating contempt proceedings before this Court.