1. 'MUNIB AHMED KHAN, J.---The case was heard on 9-6-2008 and to clarify the factual position, direction was issued for appearance of the respondent on that very date and certain queries were also raised in respect to the entitlement as well, applicability of law in the matters of illegal dispossession as well as legal position of section 17-B of the Co-operative Societies Act.
2. 'The respondent No,1 realizing the strength of his case, has now moved an application referring thereby some presumed remarks and has stated that the case be transferred to some other Bench of this Court. This application seems to be frivolous, as the same has apparently been made to forestall and delay the order, which may be passed in the matter as the applicant might have apprehended and realized the weakness of his case, as issues in the matter were discussed on 9- 6-2008. Surprisingly the said application has not only been signed by the respondent No,1 but also signed by his counsel, whereas the latter would have realized the legal and factual position as well approach of the parties and if this type of applications, after start of hearing, are entertained then no matter could be finalized and before finality in the matter either party will try to get the matter adjourned or transferred to other Bench, while apparently there is seldom, instances of transfer on this ground.
3. 'Learned counsel Mr. Muharram G. Baloch, has explained that the factual position narrated in the application of the respondent has not been dictated by him, while one of the friends of respondent No,1 was present on 9-11-2008, who narrated all that and that he is not a party to this matter, while he has formally signed the application at the request of Muhammad Nawaz Narejo, the respondent No, 1, only for the purpose to identify him. He has also explained that after signing of application, he asked the respondent No,1 not to move that application, but even then he has secretly passed on that application to the Reader.
4. 'In such situation learned counsel Mr. Muharram G. Baloch is warned to be careful in future, as activities of his client can be attributed to him as well. He should be cautious otherwise disciplinary action including removal of his name from Bar will be taken and order can also be passed against him by restraining him from appearance in this Court.
5. 'Keeping lenient view strict order is avoided and Mr. Muharram G. Baloch Advocate is left only with a warning.
6. 'On merit; through this Criminal Revision Application, order dated 21-1-2008, passed by the Sessions Judge, Jamshoro on application made under section 3 of the Illegal Dispossession Act, has been challenged.
7. Learned counsel for applicant submits that Plot No, B-63 measuring 400 Sq.Yds was the property of Sindh University Employees Cooperative Housing Society Limited, Jamshoro and under its Bye-laws, it was allotted to one Hilal Ahmed by allotment order dated 9-3-1989 and that was followed by physical possession. He further submits that Hilal Ahmed sold out that plot to one Dr. Sultan Ahmed Leghari through a registered sale-deed dated 21-1-1990. The said plot was further sold out by Dr. Sultan Ahmed Leghari to Amjad Ali Leghari, the applicant No,2 in this Criminal Revision Application.
8. He also submits that since both the applicants, who are son and father, were out of the country, therefore, their plot was illegally possessed by Muhammad Nawaz Narejo, the respondent No,1 and since he is Secretary of the Society as well, therefore, the record of the Society is also at his mercy.
9. He pointed out that the learned Sessions Judge has failed to appreciate the factual position in his order and has wrongly mentioned that 3/4 persons are claiming the property, while the applicants are relying on previous owners Hilal Ahmed and Sultan Ahmed and their documents support each other. He has placed reliance on 1998 CLC 1576, PLD 2007 SC 423 and PLD 2008 Karachi 94, unreported judgments in Criminal Revision Application No,24 of 2007 as well as a judgment in Bahadur Yar Jang Cooperative Society on the issue of 17-B of the Cooperative Societies Act.
10. 'On the other hand learned counsel for respondent No,1 submits that the learned Sessions Judge has passed an order keeping in view the factual position brought before him and if there is a discrepancy or misappreciation of the facts then the matter can be remanded for proper order. In addition he submits that the Cooperative Rules of the Cooperative Society do not permit transfer of plot of the Society to a non-member and that after Hilal Ahmed, none of the subsequent purchasers was member of the Society. He submits that in 1989 the respondent No,1 purchased this Plot from Hilal Ahmed through an agreement and since then he is in possession. He has also referred Bye-laws of the University as well as section 17-B of the Cooperative Societies Act. He further submits that alleged illegal dispossession is allegedly occurred in the year 2001 while Illegal Dispossession Act came in 2005, therefore, on this ground the complaint is not maintainable.
11. After hearing the learned counsel, it appears that there involves issue of section 17-B of the Cooperative Societies Act, which restricts only membership but not the transfer of the plot to a non-member and on that issue I have already passed a Judgment in Bahadur Yar Jang Cooperative Society's case at Karachi. In the said Judgment I have held that since a member of Society seized to be a member after transfer of his right/title in respect to plot etc. In a society, therefore, the person acquiring the. Same interest is entitled to membership of the society and its denial is illegal. Same view is also taken here, hence, contention of the respondent in this respect has no force.
12. 'It is also noticed that Hilal Ahmed and Sultan Ahmed both predecessors of the applicant No,2 were holding plot under valid allotment and registered sale deed, which documents are still intact, and according to learned counsel for applicants, have not been challenged in any Court, while the applicant No,2 himself was holding the plot on the basis of the another registered sale deed dated 22-1-1990 executed by Sultan Ahmed. The respondent No,1 is claiming the property through Hilal Ahmed on sale agreement of April, 1989, but that has not been followed by any registered sale deed, although there are requirements under the law that every document of transfer of immovable property is to be registered and document to be affixed with proper Stamp duty. In such situation, much reliance cannot be placed on the said sale agreement. Contrary to sale agreement, there are two registered sale deeds from applicant No,2 to Sultan Ahmed and under Articles 111 and 112 of Qanun-e-Shahadat, the Court has to take Judicial notice of the same,' but all that has not been done by the Sessions Judge, and with the result that he has disposed of the matter in a summary way.
13. In such a situation, the matter is being remanded back to the Sessions Judge Jamshoro to decide the same on merits, keeping in view the legal strength of the titles of the parties and law applicable as well as authorities referred to above. The learned counsel for the applicants undertakes to supply copies of unreported judgments/orders to the trial Court, within a period of two months and submit compliance report to this Court.
14. 'This Criminal Revision Application is allowed in above terms.